Citation Nr: 21020748 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 18-31 206 DATE: April 8, 2021 ORDER From November 25, 2019, to January 1, 2020, a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. From January 1, 2020, to November 11, 2020, a 70 percent rating for PTSD is granted. Since January 1, 2020, a rating in excess of 70 percent for PTSD is denied. Prior to January 1, 2020, a total disability rating based on individual unemployability (TDIU) is denied. From January 1, 2020, to November 11, 2020, a TDIU is granted. Effective January 1, 2020, basic eligibility for Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38 of the United States Code, is granted.   FINDINGS OF FACT 1. Prior to January 1, 2020, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. From January 1, 2020, the severity and frequency of the Veteran’s PTSD symptoms have more closely approximated occupational and social impairment with deficiencies in most of the areas of work, school, family relations, judgment, thinking and/or mood. 3. From January 1, 2020, but not earlier, the Veteran’s service-connected disabilities have precluded him from securing or following a substantially gainful occupation. 4. From January 1, 2020, basic eligibility for DEA benefits is established. CONCLUSIONS OF LAW 1. From November 25, 2019, to January 1, 2020, the criteria for a rating in excess of 50 percent for PTSD, were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. From January 1, 2020, to November 11, 2020, the criteria for a 70 percent rating for PTSD, were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 3. From January 1, 2020, the criteria for a rating in excess of 70 percent for PTSD, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. 4. Prior to January 1, 2020, the criteria for a TDIU were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. 5. From January 1, 2020, to November 11, 2020, the criteria for a TDIU were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. 6. Effective, January 1, 2020, the criteria for basic eligibility for DEA benefits were met. 38 U.S.C. §§ 3500, 5113; 38 C.F.R. §§ 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1960 to September 1963. The case is on appeal from a December 2017 rating decision that implemented a December 2017 Board decision granting the appeal with respect to service connection for PTSD. The Veteran appealed the initial 30 percent rating assigned in the rating decision. In June 2019, the Veteran testified at a Board hearing. In July 2019, the Board remanded the case for additional development. In October 2020, the Board denied a rating higher than 30 percent for PTSD prior to November 25, 2019. The issues as to a rating higher than 50 percent for PTSD from November 25, 2019, along with the intertwined issue of a TDIU, were remanded for additional development. The Board notes that the Veteran filed an appeal with respect to the denial of a rating higher than 30 percent for PTSD prior to November 25, 2019, in the October 2020 Board decision, to the United States Court of Appeals for Veterans Claims (Court). According to the Court’s docket, the Veteran’s appeal at the Court is active and has not yet been decided. When the case was in remand status, by a December 2020 rating decision, the RO granted an increased rating for PTSD to 70 percent, as well as a TDIU and basic eligibility for DEA benefits, effective November 12, 2020. As the awards did not satisfy the appeal in full, the issues remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issues have been recharacterized as reflected above. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. A rating higher than 50 percent for PTSD from November 25, 2019, to November 12, 2020; and in excess of 70 percent thereafter. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Under DC 9411, a 10 percent rating is warranted when there is evidence of occupational and social impairment due to mild or transient symptoms which decrease work efficiently and ability to perform occupational task only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is warranted when there is evidence of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is warranted when there is evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory; impaired judgement; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is evidence of 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 work like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The effective date for an increased rating, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is “factually ascertainable,” all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, “it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Although Global Assessment of Functioning (GAF) scores are included in the Veteran’s medical records, the Board will not consider GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018) (finding GAF scores to be unreliable indicators of functional impairment not useful in rating psychological disabilities). Analysis Pertinent to the remaining rating periods on appeal, a VA examination was conducted in January 2020. Additionally, pursuant to the Board’s October 2020 remand, the Veteran was afforded a VA examination in November 2020. The November 2020 examiner reported that the Veteran’s PTSD is severe, noting symptoms to include depressed mood, anxiety, suspiciousness, and mild memory loss. Further, both the November 2020 and January 2020 examiners reported difficulty in adapting to stressful circumstances, including work or a work-like setting, and the January 2020 examiner also noted inability to establish and maintain effective relationships. Significantly, the November 2020 VA examination concluded that the Veteran’s PTSD resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Moreover, in view of the notation that prolonged exposure therapy scheduled to begin in March 2020 was not accomplished due to coronavirus, together with records from January 2020 to March 2020 reflecting increased PTSD symptoms and noting that prior to counseling, it took three weeks for the Veteran to recover from nightmares, see April 2020 VA treatment records, the Board finds that the Veteran’s disability picture due to PTSD more closely approximates the criteria for the 70 percent rating, from the earlier date of January 1, 2020, particularly when resolving reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. This is the earliest date that an increase in the level of disability can be factually ascertained. See Swain, 27 Vet. App. at 224. As reasonable doubt was already resolved in favor of the Veteran in granting the earlier date of January 1, 2020 for the 70 percent rating, an even earlier date is clearly not warranted from November 25, 2019, to January 1, 2020. In addition, the evidence does not support a rating higher than 70 percent for PTSD since January 1, 2020. In that respect, in December 2019, the Veteran’s judgment and insight were good, and, testing in March 2020 indicated only moderate PTSD symptoms. See April 2020 VA treatment records. Additionally, the November 2020 VA examination report reflects that the Veteran denied changes in social functioning since the previous examination in January 2020, which noted no relationship problems between the Veteran and his adult son and daughter, both of whom were noted to live near the Veteran. Further, the examiner found the Veteran to be capable of managing his financial affairs. The Board notes that an April 2020 PROBLEM LIST reflects a diagnosis of depressive disorder in addition to PTSD, and the Board has considered all of the Veteran’s psychiatric symptoms. See Mittleider v. West, 11 Vet. App. 181 (1998). Additionally, no suicidal or homicidal thoughts were reported on VA examination in January 2020 and November 2020. See also April 2020 VA treatment records. After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran’s PTSD, recognizing that the symptoms listed in the rating criteria are non-exhaustive, the Board finds that his PTSD has manifested in no worse than occupational and social impairment with reduced reliability and productivity, for the rating period on appeal prior to January 1, 2020, consistent with the conclusion reached in the January 2020 report of examination. The Board further finds that from January 1, 2020, the Veteran’s PTSD is manifested by social and occupational impairment with deficiencies in most of the areas of work, school, family relations, judgment, thinking and/or mood, particularly when resolving doubt in the Veteran’s favor. See Vazquez-Claudio, 713 F.3d at 117; Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); Mauerhan, 16 Vet. App. at 442. Total occupational and social impairment is not shown. In sum, the Board finds an effective date of January 1, 2020 is supported for the 70 percent PTSD rating. The preponderance of the evidence is against a rating higher than 50 percent for the rating period on appeal prior to January 1, 2020, and against a rating higher than 70 percent for PTSD thereafter; the benefit of the doubt doctrine is not applicable; and a rating higher than 50 percent is not warranted prior to January 1, 2020 and a rating higher than 70 thereafter for PTSD is thus not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. A TDIU prior to November 12, 2020. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Analysis As noted above, the RO granted a TDIU from November 12, 2020 corresponding with the rating increased to 70 percent for PTSD, effective the same date. As a result of the Board’s grant of the 70 percent rating for PTSD from January 1, 2020 in the decision above, the Veteran meets the schedular requirements for a TDIU from that date under 38 C.F.R. § 4.16(a). In addition, as reflected in the December 2020 rating decision, the Veteran has been unemployed and in receipt of disability benefits from the Social Security Administration (SSA) since 1993. Although the SSA determination and records upon which it was based are unavailable, the May 2020 application for a TDIU reflects the Veteran’s assertion that his service-connected PTSD prevents him from securing or following any substantially gainful employment. In addition, he noted a work history related to a boiler operator. The Board notes that although he reported his highest level of education was eighth grade and no other education or training before he became too disabled to work, VA treatment records in May 2018 note his highest level of education attained was 12th grade. Applying this evidence to the Ray factors, and resolving reasonable doubt in the Veteran’s favor, the Veteran is shown to have no higher than a 12th grade education and a work history consistent with a factory worker. Further, in addition to the level of occupational impairment contemplated in the 70 percent rating for PTSD granted herein from January 1, 2020, the Veteran’s service-connected hearing loss and tinnitus would likely affect his ability to hear and understand others to some degree. In addition, the November 2020 VA examiner reported that the Veteran had difficulty in establishing and maintaining effective work relationships, and both the November 2020 and January 2020 VA examiners reported that the Veteran had difficulty in adapting to stressful circumstances, including work or a work-like setting due to service-connected PTSD. Based on the Veteran’s PTSD and other service-connected disabilities, and considering the Veteran’s individual employment history, the Board finds that the evidence is in at least in equipoise regarding whether the functional impairment associated with his service-connected disabilities is of such nature and severity as to prevent him from securing or following substantially gainful employment. Accordingly, when reasonable doubt is resolved in favor of the Veteran, the Board finds that, as of January 1, 2020, the Veteran was not employed, and his service-connected disability picture prevented him from securing or following a substantially gainful occupation consistent with his educational and occupational background. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As January 1, 2020 was the date of a factually ascertainable increase in severity to this TDIU level of impairment, a TDIU is not warranted prior to January 1, 2020. Therefore, effective January 1, 2020, but not earlier, a TDIU is warranted.   3. DEA. The Veteran was awarded eligibility to DEA in a December 2020 rating decision, effective November 12, 2020, based upon a finding that he was permanently unable, as of that date, to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 U.S.C. § 3500; 38 C.F.R. §§ 3.807, 21.3021. 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. As explained above, the Board has found that the appropriate effective date of the Veteran’s TDIU is January 1, 2020. As the effective date for DEA benefits in this case is directly related to a finding that the Veteran had a total disability that was permanent in nature by virtue of his TDIU rating, the Board finds that an effective date of January 1, 2020, for Chapter 35 benefits is warranted. Accordingly, an effective date of January 1, 2020, for eligibility for DEA benefits is granted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.