Citation Nr: 21075067 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-11 096 DATE: December 17, 2021 ORDER Entitlement to an initial 100 percent evaluation for panic disorder with agoraphobia is granted. Entitlement to an earlier effective date of March 7, 2001 for the grant of service connection for panic disorder with agoraphobia is granted. FINDINGS OF FACT 1. Panic disorder with agoraphobia causes total occupational impairment and social impairment more nearly approximating total social impairment. 2. The Veteran's original claim for benefits for a psychiatric condition was received on March 7, 2001. CONCLUSIONS OF LAW 1. The criteria for an initial 100 percent evaluation for panic disorder with agoraphobia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9412. 2. The criteria for an earlier effective date of March 7, 2001 for the grant of service connection for panic disorder with agoraphobia have been met. 38 U.S.C. §§ 5108, 5110(a) (2012); 38 C.F.R. §§ 3.156(c) 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1995 to January 1996 with additional service in the Air National Guard of Puerto Rico. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A March 2020 Board decision denied entitlement to an initial evaluation higher than 70 percent for panic disorder with agoraphobia and entitlement to an effective date prior to February 21, 2003 for the grant of service connection for that condition. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2021 Order, the Court granted the parties' Joint Motion for Remand, vacated the March 2020 decision, and remanded the matter back to the Board for action consistent with the Joint Motion. 1. Entitlement to an initial 100 percent evaluation for panic disorder with agoraphobia is granted. The question before the Board is whether the Veteran's service-connected panic disorder with agoraphobia more nearly approximates the criteria for a 100 percent rating. For the reasons discussed below, the Board finds that it does. The service-connected panic disorder with agoraphobia is rated at Diagnostic Code 9412 according to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Formula, 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; or memory loss for names of close relatives, own occupation or own name. The specified factors for each rating for mental disorders are examples, rather than requirements, for that particular rating. Analysis is not limited solely to whether a veteran exhibited the symptoms listed in the rating criteria, rather the focus should be the level of occupation and social impairment caused by the symptoms. Mauerhan v. Principi, 16 Vet. App. 436 (2002). For VA rating purposes, the evidence shows symptoms of depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; disturbances of motivation and mood; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; and memory loss. See e.g., May 2013 and January 2019 VA examinations. The March 2020 Board decision found that the Veteran's agoraphobia prevented her from leaving her home and that the severity of her symptoms caused total occupational impairment. For example, the record shows the Veteran's symptoms were of such a severity that she would be unable to leave her home for months at a time. There is clear evidence of total occupational impairment that has been previously conceded. The March 2020 Board decision also found that the Veteran's symptoms caused significant, but not total, social impairment. At that time, the Board found that the Veteran had maintained relationships with her husband and a neighbor throughout the appeal period. Here, the Board finds that the Veteran's impairment more nearly approximates total social impairment as well. As discussed in the March 2020 decision, the evidence shows that the Veteran and her spouse divorced in 2000, although he remained her primary caregiver and they later remarried in 2017. The Veteran was homeless for a period until she inherited her mother's home in December 2011. The Veteran's neighbor regularly communicated with the Veteran and visited her at the request of the Veteran's spouse to ensure the Veteran was not left alone. As of December 2018, the Veteran has been living with her spouse and adult daughter. As noted in the JMR, the evidence also shows that the Veteran reported she only interacted with her husband, who she reported did not understand "anything," and they were not intimate. August 2010 VA treatment notes document the Veteran required assistance from her spouse with some activities of daily living, such as with taking her medication, due to memory impairment. The Veteran also required frequent redirection cues due to flight of ideas. February 2009 and December 2010 VA examinations document that since she returned from service, the Veteran stayed home and avoided talking to people. The Veteran's children were removed from her home in June 2006 and the Veteran was unable to regain custody. A December 2010 VA examination notes the Veteran had not seen her children since they were removed. The totality of the evidence shows the Veteran has several people in her life who provide care for her due to her significant psychiatric symptoms. See generally February 2019 buddy statements. The Board recognizes the distinction between practical caretaking and social relationship. It is at least as likely as not that the Veteran is unable to sustain social relationships on her own accord due to the severity of her symptoms. Overall, the Veteran's degree of social impairment more nearly approximates total social impairment. In sum, panic disorder with agoraphobia causes total occupational impairment and impairment approximating total social impairment. Although the record does not reflect the specific symptoms identified at the 100 percent rating criteria, the primary focus is the resulting degree of occupational and social impairment. Here, the degree of impairment more nearly approximates the 100 percent criteria and the claim is fully granted. 2. Entitlement to an earlier effective date of March 7, 2001 for the grant of service connection for panic disorder with agoraphobia is granted. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). If VA receives or associates with the claims file relevant official service department records that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim, rather than requiring new and material evidence. 38 C.F.R. § 3.156(c)(1). An award made based all or in part on the receipt of new service department records is effective 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). Prior to March 24, 2015, a claim was "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 is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. The Veteran asserts that the date of her original claim for benefits for a psychiatric condition was September 10, 1996. Review of the record shows a rating decision with notification letter dated September 10, 1996. That decision denied entitlement to service connection for scoliosis, arthritis, a back condition, and right breast conditions. That rating decision was in response the Veteran's March 1996 claim for those benefits, and that claim did not mention any anxiety disorder or symptoms of an anxiety disorder. A July 1996 VA general examination did not document any psychiatric condition or symptoms. The record does not contain a claim for service connection for a psychiatric condition dated September 1996, nor any indication the Veteran sought benefits for a psychiatric condition at that time. The Veteran's claim for benefits was received by VA on March 7, 2001. Prior to then, there is nothing in the record that could be construed as an indication the Veteran sought benefits for a psychiatric condition. There is no evidence of a claim for benefits for a psychiatric condition that was received within one year of separation from service. Thus, March 7, 2001 is the original date of claim. The Veteran's initial claim was denied in a July 2001 rating decision. The Veteran did file a notice of disagreement to that decision but failed to timely perfect an appeal after issuance of the statement of the case. The untimely appeal was received on February 21, 2003 and treated as a claim to reopen the previously denied claim of entitlement to service connection for anxiety. Then, a July 2003 rating decision found that no new or material evidence was received to warrant reopening of the Veteran's claim. The Veteran perfected an appeal to that rating decision, and a September 2009 Board decision determined that the claim of entitlement to service connection for an anxiety disorder was reconsidered on the basis of receipt of new service department records. See 38 C.F.R. § 3.156(c). Thus, 38 C.F.R. § 3.156(c)(3) applies and the proper effective date is either the date entitlement arose or the date VA received the previously decided claim. Here, VA received the previously denied claim on March 7, 2001; therefore, that is the proper date of claim. The record does show that a psychiatric condition manifested prior to March 7, 2001; however, the date of claim is later in time and therefore the appropriate effective date pursuant to 38 C.F.R. § 3.156(c) and the claim is granted to that degree. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.