Citation Nr: 21075014 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 20-02 004 DATE: December 17, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD), is denied. Entitlement to an effective date prior to February 21, 2018, for the grant of a total rating based on individual unemployability (TDIU), is denied. Entitlement to an effective date prior to February 21, 2018, for the grant of eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35, is denied. FINDINGS OF FACT 1. The Veteran's PTSD was manifested by occupational and social impairment with deficiencies in the areas of work, family relations, and mood, but was not productive of total social and occupational impairment. 2. Following the issuance of a final rating decision issued in August 2015, which denied entitlement to a TDIU, the Veteran did not file a formal or informal claim for an increased rating or for a TDIU prior to the receipt of his claim on February 21, 2018. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for service-connected PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for an effective date prior to February 21, 2018, for the grant of a TDIU are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.157, 3.400. 3. The criteria for an effective date prior to February 21, 2018, for the grant of eligibility to DEA are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.157, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1999 to November 2005. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Board remanded the matters for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions and that no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board acknowledges the attorney's contention that he has not received a copy of the Veteran's most recent October 2020 VA examination. This statement, however, does not appear to be accurate, as the attorney subsequently indicated that he received a portion of the examination and was challenging the adequacy because it does not list all of the Veteran's symptoms. Accordingly, the Board finds that no further development is necessary in this regard. Increased Ratings Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Veteran's PTSD is rated as 70 percent disabling effective from February 2, 2014 under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411. The relevant rating criteria are set forth below. A 70 percent rating is assigned for 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 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; 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 or place; memory loss for names of close relatives, own occupation, or own name. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When it is not possible to separate the effects of a service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998). By way of history, the Veteran filed a claim, via an intent to file, for an increased rating of his service-connected PTSD on February 21, 2018. In a letter dated February 2018, the Veteran's treating VA psychologist reported that the Veteran frequently experiences intrusive memories and disturbing dreams, anger, feelings of depression, and emotional numbness. The Veteran also experienced feelings of alienation from others and sometimes isolates at home. The VA psychologist also noted that the Veteran had intermittent episodes of increased depression, wherein he neglected his personal hygiene, experienced an increased need for sleep, felt like "walking away, leaving it all behind, and had suicidal ideation. The VA psychologist opined that the Veteran's psychiatric symptoms currently rendered him unemployable and unable to succeed occupationally. The Veteran was afforded a VA PTSD examination in April 2018. The Veteran reported that he felt he was unemployable because he was "So unable to interact with others." The VA examiner referenced the Veteran's multiple jobs since service and noted the Veteran's belief that his employments has been chronical affected by his distractibility, fatigue, social avoidance, anxiety, and mood instability. The Veteran endorsed avoidance behavior, frequent vigilance, vivid intrusive memories, nightmares, frequent insomnia, frequent awakening throughout the night, frequent anger and irritability, fearfulness, absentmindedness, and anxiety. The VA examiner noted that the Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation an mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, obsessional rituals which interfere with routine activities, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The VA examiner also determined that the Veteran endorsed flashbacks, intrusive memories, irritability that did not extend to physical violence, socially avoidant behavior, hypervigilance, frequent anxiety, nightmares, worries, fearfulness, and emotional numbing. The VA examiner opined that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. Pursuant to the September 2020 remand, the Veteran was afforded another VA PTSD examination in October 2020. The Veteran reported that his biggest barriers to work were "getting overwhelmed very easily, completing mental tasks, difficulties with word finding, difficulties interacting with other people, and functioning at all in the current climate." The Veteran also stated that daily functioning is challenging and that he forgets to eat, does not care for basic hygiene for days or weeks at a time, and only bathes when his wife reminds him. The Veteran stated that current symptoms that cause distress include difficulty interacting with others, difficulty caring for his daily needs, becoming easily overwhelmed, heightened irritability, losing concentration and focus, verbal outbursts of anger toward himself and spouse, experiencing shame and remorse after these outbursts, hypervigilance, rage, feeling triggered by people wearing masks, and isolating to the point of not leaving his house unless necessary. The Veteran also endorsed passive suicidal ideation. The VA examiner noted that the Veteran had symptoms of depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The VA examiner opined that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and mood. Social Security Administration records associated with the case file document that the Veteran filed for Social Security Administration disability benefits on September 25, 2015 which were granted based solely on his PTSD by a Social Security Administrative Law Judge on October 11, 2018. The Board finds that the Veteran's symptoms did not at any time more nearly approximate the total occupational and social impairment required for a 100 percent rating. The April 2018 VA examiner did not note that the Veteran's symptoms cause total occupational and social impairment, and in fact opined that the Veteran had no more than occupational and social impairment with reduced reliability and productivity. Moreover, the medical treatment of record, particularly VA treatment records dated from February 2018 to February 2020, do not reflect that the Veteran has demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration. The Veteran has not endorsed persistent delusions or hallucinations, nor has the Veteran been shown to have gross impairment in thought processes or communication, disorientation to time or place, persistent danger of hurting self or others, or memory loss for names of close relatives, own occupation, or own name, or any of the other markers of total occupational and social impairment due to his service-connected PTSD. To the extent that the lay statements of record indicate that the Veteran had inappropriate behavior and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), these occurrences, nevertheless, appear to be sparse and do not rise to the level of severity and frequency contemplated by a 100 percent rating. The Board acknowledges the contentions made by and on the Veteran's behalf that the Veteran is entitled to a higher disability rating for PTSD based on symptoms of spatial disorientation, obsessional rituals, and suicidal ideations. Significantly, however, as indicated above, these symptoms are contemplated by the 70 percent rating criteria or by the criteria for lower evaluations. Regarding occupational impairment, the Board acknowledges that the Veteran has not regularly and consistently held employment since service and that some degree of occupational impairment due to his PTSD is clearly evidenced by the record and shown by his SSA records. Indeed, entitlement to a TDIU due to his PTSD, alone, is in effect from February 21, 2018. However, a finding that the Veteran's service-connected PTSD causes some degree of occupational impairment does not equate to 100 percent rating under the General Rating Formula. As noted, a 100 percent rating requires total social impairment in addition to total occupational impairment. Throughout the entirety of the appeal period, however, this has not been shown. In fact, the Veteran's VA treatment records show that, despite the Veteran's psychiatric symptoms, he has been able to maintain a relationship with his wife, family, and friends. Thus, the Board finds that the Veteran's psychiatric symptomatology has not been adequately described in terms of total social impairment and the criteria for the assignment of a 100 percent rating are not met. As such, the Board finds that a rating in excess of 70 percent for the Veteran's PTSD is not warranted. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. The Board has considered the applicability of the benefit of the doubt doctrine in reaching these conclusions. However, to the extent that the Veteran's claim for an increased rating for PTSD is being denied, the Board finds that the preponderance of the evidence is against a rating higher than that currently assigned. See 38 U.S.C. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). As indicated above, the Veteran's attorney appears to be challenging the adequacy of the October 2020 VA examination on the basis that the VA examiner did not list certain symptoms that entitle him to a 100 percent evaluation. Specifically, the attorney indicated that the symptom of spatial disorientation was noted in prior decisions. In spite of this contention, however, the Board finds that the attorney's argument as to adequacy lacks merit. Notably, the fact that the Veteran previously exhibited a symptom in a prior examination, does not preclude the possibility that, subsequently, the Veteran may not have that symptom. The October 2020 VA examiner appears to have adequately reported the Veteran's psychiatric symptoms at the time of the examination and those symptoms did not include spatial disorientation. Effective Dates The Veteran's claim for TDIU was received March 16, 2018. He was awarded TDIU effective February 21, 2018, based on the receipt on that date of his intent to file a claim. The Veteran seeks an earlier effective date for the award of TDIU and eligibility to DEA. Unless specifically provided otherwise, generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a). If a claim for disability compensation is received within one year of separation from service, the effective date of an award is the day following separation. 38 U.S.C. § § 5110(b)(1). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). If a claim is finally denied and later reopened and granted based on the submission of new and material evidence, the effective date of benefits will be the date that the claimant filed the application to reopen or the date that entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(2). If, however, at any time after VA issues a decision on a claim VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). When benefits are awarded based all or in part on the receipt of service department records that were not "associated with the claims file when VA first decided the claim," VA allows the assignment of an effective date of benefits "on the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c)(3). Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. Claims or appeals pending on that were pending on that date are to be decided by the regulations as they existed prior to the amendment. Id. Under the law prior to the amendment, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). An informal claim was any communication or action indicating an intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims formal and informal for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The Veteran further contends that an earlier effective date for TDIU is warranted because the proper effective date for a TDIU should be the date the evidence shows the Veteran was rendered unemployable by his service-connected disability and not the date of his claim. By way of history, the Veteran filed a claim for service connection for PTSD and entitlement to a TDIU on February 20, 2015. In a June 2015 rating decision, the RO granted service connection for PTSD, rated as 70 percent disabling, effective February 20, 2014, pursuant to Section 506 of Public Law 112-154. In a July 2015 letter, the RO requested that the Veteran complete and return VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, within 30 days. In an August 2015 rating decision, the RO noted that it did not receive a completed VA Form 21-8940 and proceeded to deny the Veteran's claims of entitlement to a TDIU. Specifically, the RO noted that if the VA Form 21-8940 is received prior to July 23, 2016 the claim would be readjudicated and that if the evidence was received after July 23, 2016, it must be considered a new claim. There is no indication of nonreceipt, nor was the letter returned as undeliverable. Where evidence requested in connection with an initial claim or supplemental claim or for the purpose of determining continued entitlement is not furnished within one year after the date of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158 (a). After the expiration of one-year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, compensation based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158(a). The Veteran did not timely appeal the June 2015 and August 2015 rating decisions nor did he submit a VA Form 21-8940 within a year of those decisions and, therefore, those decisions are final. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). Upon review, the Board finds that on February 21, 2018, VA received an intent to file for entitlement to a TDIU. The RO also interpreted it as a claim for an increased rating for PTSD and in a May 2018 rating decision, the RO denied a rating in excess of 70 percent for PTSD and granted entitlement to TDIU and eligibility to DEA, effective February 21, 2018. The record does not reflect that any evidence was received prior to February 21, 2018, showing that the Veteran's service-connected PTSD had worsened since the last evaluation conducted in June 2015 or any evidence indicating unemployability. In fact, the record does not demonstrate the receipt of any additional evidence since the June and August 2015 rating decision and prior to receipt of the Veteran's increased rating claim on February 21, 2018. The first record of unemployability received by the RO is the Veteran's March 2018 VA Form 21-8940. As for Social Security Administration benefits, the record shows that Social Security Administration disability benefits were granted based solely on his PTSD by a Social Security Administrative Law Judge on October 11, 2018. Therefore, the Board finds the evidence does not demonstrate that a factually ascertainable increase in the Veteran's PTSD or unemployability occurred within the one-year period preceding the date of receipt of the claim. Finally, the Board finds the issue of CUE in a specific prior AOJ or Board decision has not been raised by the Veteran and, therefore, is not before the Board at this time. For these reasons, an effective date prior to February 21, 2018, for the assignment of a TDIU is not warranted. The Board finds that the preponderance of the evidence is against the assignment of an earlier effective date, and the claims must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55-56. The effective date for basic eligibility for DEA benefits is directly related to a finding that the Veteran has a total disability that is permanent in nature. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. As such, the Board finds that the appropriate effective date for the award of basic eligibility for DEA benefits in this case is February 21, 2018, as that is the date as of which it has been established by VA that the Veteran became permanently and totally disabled due to a service-connected disability. PAUL E. METZNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.