Citation Nr: 21067522 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-33 021 DATE: November 4, 2021 ORDER Entitlement to a 100 percent rating for Posttraumatic Stress Disorder (PTSD) with memory loss is granted from May 24, 2009. Entitlement to an effective date of May 24, 2009 for the grant of eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed as moot. FINDINGS OF FACT 1. The Veteran's PTSD is manifested by total occupational and social impairment from May 24, 2009. 2. Entitlement to DEA benefits arose on May 24, 2009. 3. As the Veteran's sole service-connected disability is rated as 100 percent disabling throughout the period on appeal, there remain no questions of law or fact to be decided regarding the claim for a TDIU. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 100 percent rating for PTSD with memory loss from May 24, 2009 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for an effective date of May 24, 2009 for eligibility for DEA benefits have been met. 38 U.S.C. §§ 3501, 3510, 5113; 38 C.F.R. §§ 3.807 (a), 21.3021 3. The appeal as to entitlement to a TDIU is moot and the claim is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to October 1989 and from August 1990 to January 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to a TDIU was raised by the Veteran's representative in a correspondence letter dated in July 2011. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In a September 2013 rating decision, the RO denied entitlement to a TDIU. On his June 2017 substantive appeal, the Veteran requested a hearing before a member of the Board at his local office. The Veteran withdrew his hearing request via his representative in April 2020. 1. Entitlement to a rating in excess of 50 percent for PTSD with memory loss prior to June 13, 2011 By way of procedural history, service connection for PTSD was initially granted in a June 2007 rating decision, which assigned a 50 percent rating, effective August 16, 2006. The Veteran filed a notice of disagreement (NOD) with the initial assigned rating and a statement of the case (SOC) was provided in January 2009. The Veteran did not perfect the appeal to the Board. As such, it became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Thereafter, the Veteran filed an increased rating claim for his PTSD on May 24, 2010. In a February 2011 rating decision, the RO continued the Veteran's evaluation for PTSD at 50 percent. In a January 2014 rating decision, a 100 percent rating for PTSD was granted, effective June 13, 2011. The Veteran is seeking a rating in excess of 50 percent prior to June 13, 2011 for his PTSD. It is the Veteran's contention that his psychiatric impairments were at the same severity throughout the entire appeal period, and that an increased rating prior to June 13, 2011 is warranted. See July 2020 Brief. In a July 2020 statement, the Veteran indicated he believes the increase to a 100 percent for his PTSD was due from the time he filed his claim in 2010. In July 2011, a correspondence letter from the Veteran's representative expressed that the Veteran remains unable to work secondary to the symptoms and limitations stemming from his PTSD and that the Veteran feels that his rating does not accurately depict the severity of his condition. A private evaluation from Dr. H.T. Luckett was enclosed. In a February 2012 notification letter, the RO noted that their records show that on May 26, 2011, the Veteran may have submitted a notice of disagreement. The Veteran was asked to resubmit a copy of the disagreement. In a January 2014 rating decision, the RO increased the evaluation of PTSD to 100 percent, effective June 13, 2011, based on the July 13, 2011 private psychiatric evaluation from Dr. H. Luckett, which showed that a 100 percent evaluation was warranted. Although the RO characterized the issue on appeal here as entitlement to an "earlier effective date" for the 100 percent disability rating for PTSD, that issue is in fact, part of the appeal for a higher disability rating. More specifically, the Veteran filed an increased rating claim for his service-connected PTSD, and the RO's actions (while that appeal was pending) resulted in a staged rating for the condition on appeal. Where the rating for a service-connected condition has been staged, the Board's review includes consideration not only of whether those ratings should be increased, but also whether the date assigned for the staged rating was in accordance with the evidence. In this Board decision, all the questions that would pertain to an earlier effective date issue (when entitlement to a certain disability rating arose) shall be addressed in adjudicating the appeal for a higher rating. The Board finds that the Veteran is clearly appealing a rating in excess of 50 percent prior to June 13, 2011, and the denial of entitlement to a TDIU. Thus, essentially, the issue before the Board is whether a rating in excess of 50 percent is warranted for the Veteran's PTSD prior to June 13, 2011. The Board notes that, because the increased rating claim was received on May 24, 2010, the period on appeal begins one year prior to the receipt of his claim. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where, as here, entitlement to service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's psychiatric disorder is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 70 percent rating is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted when there is a total occupational and social impairment, due to such symptoms as persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. A veteran "may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Symptoms listed in the General Rating Formula serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). Turning to the evidence of record, in January 2011, the Veteran was afforded a VA examination. The examiner noted that that the Veteran did not have any friends and that he is a loner. The examiner indicated that the Veteran has a history of suicide attempts and violence. The examiner indicated that the Veteran has difficulty getting or maintaining employment due to slow productivity, poor concentration, and difficulty multitasking. The examiner reported that the Veteran's general appearance was clean and casually dressed. The Veteran was noted to have unremarkable speech, constricted affect, and a cooperative attitude toward the examiner. Thought process and content were unremarkable and no delusions were noted. The examiner reported no hallucinations. The examiner discussed that the Veteran has impulsivity which may have led to his incarceration. The Veteran does not have obsessive or ritualistic behavior. The Veteran was reported to have panic attacks. The examiner noted a presence of suicidal thoughts. However, the Veteran indicated that he did not know if he was suicidal. Due to the unusualness of his response, the examiner questioned the Veteran further, which led the Veteran to state that he guesses he is not suicidal as he is without plan or intent. Memory was recorded as normal. The examiner reported that the Veteran has a markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, difficulty falling or staying asleep, irritability, difficulty concentrating, hypervigilance, and an exaggerated startle response. The examiner opined that there is reduced reliability and productivity due to the Veteran's PTSD. The examiner noted that the Veteran is markedly limited to the most basic of non-stressful activities. The examiner noted that the Veteran has had multiple attempts of unsuccessful employment and has been basically limited by anxiety, poor self-concept, poor focusing, poor concentration, difficulty multitasking, and poor social interaction. In a July 2011 private psychiatric evaluation from Dr. H. Luckett, the examiner noted that the Veteran's symptoms included persistent irrational fears; persistent danger of hurting self and others; deficiencies in work or school; depression affecting the ability to function independently, appropriately, and effectively; deficiencies in mood; difficulty adapting to stressful circumstances; intrusive recollections of a traumatic experience; unprovoked hostility and irritability; inability to establish and maintain effective relationships; deficiencies in judgement; and suicidal ideation. The examiner expressed that the Veteran has a significant difficulty with his interactions with others. The examiner stated that the Veteran misreads social cues frequently and then will ruminate and remain agitated and angry. The examiner noted that the Veteran's ability to maintain attention and concentration for extended period and his ability to work in coordination with or proximity to others without being distracted was moderately limited. The examiner noted that the ability to complete a normal workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods was markedly limited. In addition, the Veteran's ability to interact appropriately with the general public, his ability to accept instructions and respond appropriately to criticism from supervisors, his ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes, and his ability to respond appropriately to changes in the work setting was markedly limited. The examiner expressed that the work environment appears to be an extremely stress-provoking setting for the Veteran, and it tends to exacerbate the Veteran's condition. The examiner opined that it is unlikely that the Veteran would be capable of performing full time competitive work with his psychological symptoms and limitations. In a VA memo dated May 2012, the Veteran was noted to have applied for Vocational Rehabilitation Services in January 2011. It was noted that the Veteran had been provided a comprehensive assessment in May 2009 with a prior application. The Veteran was found entitled to services in January 2011 with a serious employment handicap. It was noted that the Veteran participated in a Goodwill Evaluation and made borderline progress. It was noted that the Veteran continued to have problems with social interactions and always appeared stress. The Veteran had a hard time coping with new situations or dealing with people who were perceived upset or angry. When the Veteran was able to work in solitary environment, the Veteran was able to maintain employment. The Veteran had problems with his supervisor which resulted in him being terminated with employment. It was noted that the Veteran is very sensitive to stress and pressures of daily activity, that he has a hard time with authority, and it is unlikely he would be able to maintain competitive employment. In a June 2012 review of vocational rehabilitation for medical infeasibility determination, it was noted that due to the Veteran's multiple problems and their severities, it was doubtful that the Veteran would be able to report to the work force and retain gainful employment. The Veteran submitted a separate private psychiatric/psychological impairment questionnaire, dated in March 2017. The reviewing physician was asked to answer questions regarding the Veteran's PTSD during the period of May 24, 2009 through June 13, 2011. The examiner noted that the Veteran's PTSD symptoms included deficiencies in family relations; deficiencies in work or school; deficiencies in mood; difficulty in adapting to stressful circumstances; intrusive recollections of a traumatic experience; grossly inappropriate behavior; and unprovoked hostility and irritability. The examiner added that per the Veteran's previous provider, the Veteran's symptoms also include extreme anxiety. The examiner noted that the Veteran has been arrested numerous times for simple battery, shooting at people, and attempted murder of a police officer after a flashback of being in Iraq. The examiner reported that per pervious records, the Veteran is markedly limited in his ability to perform numerous work-related activities. The examiner reported that the Veteran has thoughts of harming others to protect self, problems with authority, and problems with reality. With regards to the question of whether the Veteran was capable of performing gainful employment from May 2009 to June 2011, the examiner opined that the Veteran was not capable, as per review of the records. The examiner stated that it is important to note that the examiner did not start seeing the Veteran until December 2014. Instead of testifying at a Board hearing, the Veteran submitted a statement in July 2020 explaining why he was seeking an increase for his PTSD prior to June 13, 2011. The Veteran stated that prior to starting his own sub-contracting business in 2006, he was having issues with his PTSD causing problems at work with co-workers and supervisors. The Veteran expressed that his issues at work led him to start his own business, which ultimately led to unemployment in 2008. The Veteran stated that he last worked in 2008. The Veteran noted that in May 2010, he entered a VA drug and alcohol program, followed by a homelessness program. The Veteran indicated that he had to leave the homelessness program because his PTSD symptoms caused him to get in a physical altercation with other veterans. The Veteran noted that he started vocational rehabilitation in January 2011 and that he had to leave the program because of his inability to function in a work like environment. The Veteran stated that he had trouble with a neighbor in 2010 that resulted in him being charged with simple battery. The Veteran noted that two weeks later, he was arrested for the same issue. In addition, in 2010, he was constantly fighting with his girlfriend, which led to the end of the relationship. After careful review of the medical and lay evidence of record, the Board finds that by resolving all reasonable doubt in favor of the Veteran, a 100 percent rating for PTSD, prior to June 13, 2011 is warranted. Prior to June 13, 2011, the probative medical evidence shows that the Veteran exhibited significant social and occupational impairment, primarily manifested by persistent danger of hurting self or others, irritability, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, difficulty falling or staying asleep, difficulty concentrating, hypervigilance, and an exaggerated startle response. The Board acknowledges that the Veteran has not displayed gross impairment of his thought processes or communication, or inability to perform any activities of daily living; nor has he shown any disorientation to time or place or memory loss or other symptoms on psychiatric evaluations akin to the criteria for a 100 percent rating under the General Rating Formula for Mental Disorders. However, a 100 percent disability rating does not require meeting a checklist of each of the symptoms listed in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Rather, the Board must look to the overall level of symptomatology as it applies to the Veteran's ability to function in occupational and social settings. Thus, regardless of the individual symptoms identified, the Board concludes that the record reflects that the Veteran's service-connected PTSD more nearly approximate the criteria for a 100 percent disability rating from May 24, 2009, a year prior to when the Veteran filed his increase rating claim. Resolving all reasonable doubt in the Veteran's favor, a 100 percent rating for PTSD is granted from May 24, 2009. Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for an increased disability rating will be the date of receipt of the claim or the date entitlement arose, whichever is the later. If, however, it is factually ascertainable that entitlement arose within one year prior to filing the claim, then the effective date shall be the date entitlement arose. If entitlement arose more than one year prior to filing the claim, then the effective date shall be the date of receipt of the claim. 38 C.F.R. § 3.400. Critically, in this case, the evidence of record strongly suggests that the increase in PTSD symptoms occurred at least one year prior to the date of claim. In a March 2017 private psychiatric/psychological impairment questionnaire, the reviewing physician found that from May 24, 2009 through June 13, 2011, the Veteran's PTSD symptoms included deficiencies in family relations; deficiencies in work or school; deficiencies in mood; difficulty in adapting to stressful circumstances; intrusive recollections of a traumatic experience; grossly inappropriate behavior; and unprovoked hostility and irritability. Further, in a July 2020 statement, the Veteran, the Veteran stated that prior to starting his own sub-contracting business in 2006, he was having issues with his PTSD causing problems at work with co-workers and supervisors. The Veteran also expressed that his issues at work led him to start his own business, which ultimately led to unemployment in 2008. Thus, resolving all reasonable doubt in favor of the Veteran, it was factually ascertainable that one year prior to the date of the claim for an increased rating, the criteria for a 100 percent rating for PTSD was met. Accordingly, the Board finds that a 100 percent rating is warranted for the Veteran's service-connected PTSD from May 24, 2009. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 3.400(o)(2); Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to an earlier effective date for the grant of eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 The Veteran asserts than an earlier effective date is warranted for the grant of Dependents' Educational Assistance, which was granted effective June 13, 2011 in a January 2014 rating decision. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, "eligibility date" means the date on which the individual became an eligible person as defined by 38 U.S.C. § 5113 (a)(1), and "initial rating decision" means a decision by VA that establishes the veteran's total disability as permanent in nature. 38 U.S.C. § 5113 (b)(3). Eligibility for DEA benefits requires an underlying service-connected disability that is both total and permanent in nature. 38 U.S.C. § 3501 (a)(1)(A)(ii), (D)(i); see 38 C.F.R. §§ 3.807 (a)(1)-(2), 21.3021(a)(1)(iii), (3)(i). The agency of original jurisdiction (AOJ), in its rating decision, determined that the Veteran was entitled to an effective date for DEA that coincided with the date of entitlement to a total rating for PTSD. The Board will not disturb this favorable finding and likewise concludes that the effective date for the award of the total rating for PTSD should be used for the Veteran's basic eligibility for DEA benefits. Per this hereby decision, the date of the entitlement to a 100 percent (total) rating for PTSD is May 24, 2009. Accordingly, an effective date of May 24, 2009, for the award of basic eligibility for DEA benefits is granted. 3. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) The Veteran seeks entitlement to a TDIU for his service-connected psychiatric disorder. The Veteran and his representative contend that the Veteran was unemployable during the period of May 24, 2009, (one year prior to the date the Veteran filed his increased rating claim for PTSD) to June 13, 2011. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340 (a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the Veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). As noted above, the Veteran will be in receipt of a 100 percent schedular rating for PTSD from May 24, 2009, which encompasses the entire duration of the period on appeal. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where a 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his service-connected disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the veteran has a 100 percent disability rating for a single disability, and VA finds that a TDIU is warranted based solely on service-connected disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11,229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 ). In this case, there is no allegation or evidence that TDIU may be awarded independently of the Veteran's psychiatric disorder because the Veteran is not service-connected for any other disabilities. Therefore, there is no basis to award SMC. See Bradley, 22 Vet. App. 280 (2008); Buie, 24 Vet. App. at 242. As such, Bradley is inapplicable, and the grant of a total schedular rating for a psychiatric disorder during the appellate period renders the Veteran's claim for a TDIU moot. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.