Citation Nr: 21071147 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-23 819 DATE: November 29, 2021 ORDER An earlier effective date of June 15, 2006, for a rating for an acquired psychiatric disorder at 70 percent is granted, subject to the laws and regulations governing the awards of monetary benefits. An earlier effective date of June 15, 2006, for the award of a total disability due to individual unemployability (TDIU) rating is granted, subject to the laws and regulations governing the awards of monetary benefits. FINDINGS OF FACT 1. The evidence of record shows that the overall severity levels of the Veteran's psychiatric symptomatology and the corresponding severity levels of occupational and social impairment, to include its impact on his ability to secure a substantially gainful occupation, were largely the same throughout the rating period on appeal. 2. The Veteran continuously prosecuted his claim of service connection for PTSD since June 15, 2006. CONCLUSIONS OF LAW 1. The criteria for effectuating the award of 70 percent for an acquired psychiatric disorder have been met as of June 15, 2006. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.130, DC 9434. 2. The criteria for effectuating the award of a TDIU rating have been met as of June 15, 2006. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from June 1974 to June 1977. This appeal originates from a November 2006 rating decision, in which the Regional Office (RO) denied his claim for service connection for an acquired psychiatric disorder. Following a number of appeals and rating actions, to include the Board's remand, the RO granted service connection for his persistent depressive disorder currently evaluated at 50 percent from June 15, 2006 to February 16, 2017, and covered by the 70 percent and TDIU ratings thereafter. The Veteran testified at the Board's hearings in September 2013 and June 2021; both transcripts are of record. The initial hearing addressed the issue of service connection for PTSD, while the 2021 hearing addressed the appropriate effective date for the assigned rating. As reflected in the June 2021 Board's hearing transcript, the Veteran states that he has been dealing with emotional problems ever since his service in the 1970s. He further states that, although the severity levels of his psychiatric disorder have progressively worsened over the years, those levels have been fairly the same since 2006, when he no longer was able to earn a sustainable living. With that, he is seeking to effectuate the award of the rating for his acquired psychiatric disorder at 70 percent and a TDIU rating from June 15, 2006. The award of a rating increase generally is effectuated from the receipt date of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). Of note, assigning different rating percentages for different stages through the rating period on review, a practice known as "staging the ratings," may be appropriate in cases where the evidence of record shows the distinctly different severity levels of disability during the distinct periods. See Hart v. Mansfield, 21 Vet. App. 505 (2008); Fenderson v. West, 12 Vet. App. 119 (1999). Otherwise, the disability should be rated the same throughout the rating period on appeal. However, any rating increase may not be effectuated any earlier that the effective date of service connection, in this case, June 15, 2006. As such, the remaining issue here is the date on which the Veteran's entitlement to the most recent evaluation has arisen. Upon reviewing all evidence of record, the Board has ultimately found that the overall severity levels of the Veteran's psychiatric disorder were not substantially distinct at any time since June 2006, so as to warrant staging the ratings, and thus his entitlement to a rating for his psychiatric disorder at 70 percent and a TDIU rating have been met at that time. Moreover, the Veteran has effectively continuously prosecuted his appeal since it was received in June 2006. An October 2006 psychiatric evaluation report (received from SSA in April 2013) reflects that the Veteran began having emotional problems at the age of 19, when he was deployed for training in Germany but was wrongly accused of rape and had been confined to barracks for several weeks. At that time, the Veteran tried to drink himself to death until he was finally cleared of all charges. Following service, he continued drinking to cope with his persisting emotional problems at the rate of one pint of liquor and a six-pack of beer per day, which has continued at that level for many years until he got DWI in 1996. While acknowledging the Veteran's own belief at the time that his inability to maintain employment in his past line of work as a truck driver is due to medical rather than emotional reasons, the psychiatrist opined that the Veteran's psychiatric symptomatology is a contributing factor. The psychiatrist noted the Veteran has chronic frequent disturbing nightmares, persistently depressed mood, anxiety, and exhibits mild cognitive deficiencies due to his psychiatric symptomatology affecting his functioning in both occupational and social spheres. He has been divorced twice, is financially dependent on his third wife, is a loner and does not have any close friends, and his judgement is poor particularly in light of his history of substance abuse and resulting legal problems, along with the fact that he still continues to abuse alcohol despite his history and a medical advice to stop. Moreover, for example, an April 2016 correspondence from a suicide prevention coordinator, Ms. A.V., LCSW, reflects her professional opinion that the Veteran's depressive symptoms, to include suicidal thoughts, have been debilitating for him and have affected all aspects of his life for many years. These severity levels of occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood, due to symptoms such as suicidal ideation, as shown in 2006, squarely meet the criteria for rating psychiatric disorder at 70 percent which thus is warranted from June 15, 2006. See 38 C.F.R. § 4.130, DC 9434. The evidence of record also persuasively shows that the Veteran has been unable to secure a substantially gainful occupation on account of his psychiatric disability throughout the rating period on appeal. Of note, while he had abandoned his career as a truck driver due to his non-service-connected peripheral arterial disease and diabetes mellitus requiring insulin for glucose control, which precluded him from maintaining his commercial driver's license, his service-connected psychiatric disorder has also played a major role in precluding him from securing any substantially gainful employment. Of particular note here is a May 2016 correspondence received from the Veteran's treating psychologist, Dr. A.C., PhD, who opined based on her professional observations since 2011 and the Veteran's history since service, that the Veteran's functional limitations imposed by his psychiatric symptomatology are due to his trauma sustained in service. Dr. A.C. explains that it is due to his military trauma that the Veteran felt he could not work in an environment with other people and was forced to work in a low social contact role. This was why he chose a career as a truck driver in the first place. Although the Veteran was unable to continue this career largely due to physical health reasons, it is his psychiatric disability that had forced his career 'choice' to drive all day long in isolation from others as well as it is this choice made on the basis of limitations imposed by his psychiatric disorder that drastically limits his ability to re-enter the workforce. The Board agrees. Upon further considering the Veteran's functional limitations in light of his sixth-grade education effectively leaving him with no feasible alternatives, and absent any evidence of record suggesting any significant change in his circumstances between June 15, 2006 and February 17, 2015, when he was awarded a TDIU rating, the Board finds that it is at least as likely as not that he has been unable to secure a substantially gainful employment due to his psychiatric disability since June 15, 2006. As such, the criteria for a TIDU rating have been met as of that date. See 38 C.F.R. § 4.16(a). Accordingly, the appeal is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alex Bardin, Associate Counsel 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.