Citation Nr: A21020629 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 200519-187466 DATE: December 29, 2021 ORDER Entitlement to an effective date of September 20, 2016, but no earlier, for the award of a 70 percent disability evaluation for posttraumatic stress disorder (PTSD) with cannabis use disorder is granted. Entitlement to an effective date of September 20, 2016, but no earlier, for the award of a total disability evaluation based on individual unemployability (TDIU) is granted. Entitlement to an effective date of September 20, 2016, but no earlier, for the award of eligibility to Dependents' Educational Assistance under 38 U.S.C. chapter 35 is granted. FINDINGS OF FACT 1. A March 2019 Board decision denied entitlement to an effective date earlier than September 20, 2016 for the grant of service connection for PTSD. 2. Affording the Veteran the benefit of the doubt, since September 20, 2016, his PTSD with cannabis use disorder has resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. Affording the Veteran the benefit of the doubt, since September 20, 2016, his service-connected disabilities, including PTSD, have prevented him from obtaining or maintaining gainful employment. 4. From September 20, 2016, the Veteran met the requirements for Dependents' Educational Assistance. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 20, 2016, but no earlier, for the 70 percent evaluation for PTSD with cannabis use disorder have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400, 4.130, Diagnostic Code 9411. 2. The criteria for an effective date of September 20, 2016, but no earlier, for the award of a TDIU have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.158, 3.400. 3. From September 20, 2016, the criteria for Dependents' Educational Assistance eligibility have been met. 38 U.S.C. §§ 3500, 3501, 5103, 5103A, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400, 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that evidence was added to the claims file during a period of time when new evidence was not allowed, and this evidence cannot be considered by the Board at this time. As a preliminary matter, the Board notes that it previously denied entitlement to an effective date prior to September 20, 2016, for the RO's award of service connection for PTSD with cannabis use disorder and remanded entitlement to a disability evaluation in excess of 30 percent for his service-connected psychiatric disability. See March 2019 Board Decision. Accordingly, the Board finds that the period on appeal is only from September 20, 2016, to August 22, 2017. The Board notes that in March 2019, the Board remanded the issue of entitlement to a higher initial rating for PTSD, which had been appealed under the Legacy appeal system. The current appeal initiating in May 2020 under the Appeals Modernization Act (AMA) requested only an earlier effective date for the increased rating for PTSD. The issue of entitlement to a higher initial rating for PTSD therefore is not currently within the jurisdiction of the Board; it remains on appeal under the Legacy system, or will be addressed at a later date under the AMA if the Veteran chooses to opt-in under this appeal system. Earlier Effective Date for 70 Percent Rating for PTSD The Veteran contends that his PTSD with cannabis use disorder, which has been rated as 70 percent disabling since August 22, 2017, should be assigned an earlier effective date. The Veteran was initially assigned a 30 percent rating from September 20, 2016. After reviewing all of the evidence, the Board affords the Veteran the benefit of the doubt and finds that an earlier effective date of September 20, 2016 can be assigned for the increased 70 percent rating. On August 27, 2018, the Veteran submitted a claim for a TDIU. The RO considered this to be a claim for an increased ratings for the Veteran's service-connected disabilities, and the Veteran was afforded a new VA examination. The Veteran attended a VA examination in November 2018, where he had symptoms that included depressed mood, anxiety, near-continuous panic or depression, chronic sleep impairment, circumstantial or stereotyped speech, obsessional rituals, impaired impulse control, and intermittent inability to perform activities of daily living. The examiner found that he had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. These symptoms therefore indicated that the Veteran's symptoms more nearly approximated those of a 70 percent rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (A 70 percent rating is assigned with an 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; and inability to establish and maintain effective relationships). When the RO assigned an increased rating of 70 percent in the May 2019 rating decision, it assigned an effective date of August 27, 2018. In an April 2020 rating decision, the effective date was revised to August 22, 2017, on the basis that this was the earliest date that the evidence showed a worsening. The Board notes that the RO's initial reliance on the August 27, 2018 date as the date of the claim is incorrect, because the Veteran had appealed the initial rating assigned, and as the initial rating decision remained pending, the appeal period extends back to September 20, 2016. The Board finds that although the November 2018 VA examination is the clearest indication that the Veteran had symptoms which warranted a 70 percent rating, it is likely that his symptoms had worsened well before the date of the examination. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (Effective dates should not be mechanically assigned based solely on the date of the VA examination, but should include consideration of all of the facts to determine the date that the increase in disability was ascertainable.). The Board finds that there is evidence that the Veteran had such severe symptoms as early as 2016, and an effective date of September 20, 2016, the date service connection was granted, can be assigned. While the January 2017 VA examiner found that the Veteran's symptoms were less severe than the November 2018 VA examiner did, the Veteran nonetheless did have many serious symptoms at that examination, including depressed mood, anxiety, suspiciousness, chronic sleep impairment, and difficulty maintaining relationships and adapting to stressful circumstances. He also reported hopelessness and wanting to "disappear." Statements from the Veteran's wife and mother indicate that by October 2016, the Veteran had uncontrollable anger, nightmares, agitation, and irrational behavior. A December 2016 statement from the Veteran indicated that he has had thoughts of killing himself. The Board therefore affords the Veteran the benefit of the doubt and finds that these symptoms indicate that he did meet the criteria for a 70 percent rating for the entire period on appeal. Furthermore, the Board notes that the presence of suicidal ideation, on its own, can support a 70 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). An earlier effective date of September 20, 2016 for the increased 70 percent rating for PTSD with cannabis use disorder is therefore granted. No earlier effective date can be granted, as this is the date of the award of service connection for PTSD, and the Board has already adjudicated the validity of that effective date in a prior Board decision. The current claim is therefore granted in full. Earlier Effective Date for TDIU The Board also affords the Veteran the benefit of the doubt and finds that since September 20, 2016, he has been unable to obtain or maintain gainful employment. The Veteran has already been granted entitlement to a TDIU from August 22, 2017. VA may grant a TDIU when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Now that the Veteran has been granted an increased rating for PTSD, he does meet the criteria for schedular eligibility for a TDIU under 38 C.F.R. § 4.16(a) since September 20, 2016. The Veteran has reported that he worked as a corrections officer and parole agent from 1988 to 2009. In March 2017, the Veteran wrote that he has been unemployed since 2009 due to his intrusive thoughts, difficulty establishing work relationships, continuous panic attacks, irrational thinking, and major social detachment. April 2017 statements from the Veteran's wife also state that the Veteran had to stop working as a corrections officer because he had become mean and moody, and was no longer safe to carry a weapon. These reported symptoms are supported by medical evidence of record, and the Board finds it is as likely as not that they would prevent him from being able to perform an occupation consistent with his education and work experience. The Board therefore finds that the preponderance of the evidence demonstrates that the Veteran's service-connected disabilities, including PTSD, prevented him from being able to maintain any gainful employment from September 20, 2016 to August 21, 2017. Entitlement to a TDIU for this period is granted. Earlier Effective Date for Dependents' Educational Assistance Basic eligibility for Dependents' Education Assistance exists for a Veteran's spouse or child if the veteran was discharged under conditions other than dishonorable and has a permanent total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3020, 21.3021. A permanent and total disability refers to a veteran who has been found to have a service-connected disability which is rated as "total" (100 percent) and where the impairment is reasonably certain to continue throughout the life of the disabled veteran. 38 C.F.R. § 21.3021(p). Because the Veteran has been found to have permanent disabilities which are now again rated as total through the grant of a TDIU from September 20, 2016, basic eligibility to DEA benefits is also warranted, and the appeal is granted. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.