Citation Nr: 21022554 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 00-01 259A DATE: April 16, 2021 ORDER An effective date of December 17, 1984 for the assignment of a 100 percent rating for paranoid schizophrenia with posttraumatic stress disorder (PTSD) is granted. An effective date of December 17, 1984 for basic eligibility to Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted. A total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The probative evidence of record including private treatment records and an April 1985 VA examination indicate that the Veteran’s PTSD was manifested by total social and occupational impairment due to such symptoms as persistent delusions and auditory hallucinations. 2. The Veteran’s dependent(s) first became eligible for DEA benefits on December 17, 1984, the same date that the Veteran was assigned a 100 percent rating for service-connected disabilities that are permanent in nature. 3. The Veteran’s service-connected PTSD has been assigned a 100 percent schedular rating; the probative evidence of record including a private medical opinion and a January 2013 VA examiner’s opinion indicates that the Veteran is not unable to obtain and follow a substantially gainful occupation as a result of his service-connected disabilities other than PTSD. CONCLUSIONS OF LAW 1. The criteria have been met for an effective date of December 17, 1984 for the assignment of a 100 percent evaluation for PTSD. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 2. The criteria have been met for an effective date of December 17, 1984 for basic eligibility to DEA under 38 U.S.C. Chapter 35. U.S.C. §§ 3510, 5110, 5113; 38 C.F.R. §§ 3.400, 3.807, 21.3021. 3. The criteria for a TDIU rating have not been met. 38 U.S.C. §§ 5110, 5107, 5109A, 7105 (2002, 2012); 38 C.F.R. §§ 3.105, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from May 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2006 and November 2006 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Montgomery, Alabama. In an April 2015 decision, the Board remanded the issues related to diabetes mellitus and paranoid schizophrenia. The Board also denied the claim for an effective date prior to April 30, 1999, for the award of service connection for PTSD. The Veteran appealed the denial of an earlier effective date to the United States Court of Appeals for Veterans Claims (Veterans Court). In a December 2016 Memorandum Decision, the Court reversed the Board’s findings that the Veteran did not file a claim for psychiatric disability in 1984 and that there was no pending claim for psychiatric disability benefits prior to April 30, 1999. The Veterans Court further set aside the Board’s finding that the Veteran’s 1984 claim “did not encompass a claim for disability compensation for PTSD.” The Veterans Court noted that the issues of entitlement to an earlier effective date for PTSD and entitlement to service connection for schizophrenia (which was not before the Veterans Court) were inextricably intertwined and should be consolidated and adjudicated together on remand. The Veterans Court remanded the case to the Board for additional development and adjudication consistent with the Veterans Court’s decision. These matters returned to the Board in August 2017 and were remanded for further development. 1. An effective date earlier of December 17, 1984 for the assignment of a 100 percent rating for PTSD is granted. Legal Criteria Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400, 38 C.F.R. § 3.2500(c). The effective date of an award of disability compensation for claims to reopen is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Disability ratings are based on average impairment in earning capacity resulting from a disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1110; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The Veteran’s PTSD is rated under the General Rating Formula for Mental Disorders, which provides that a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as, for example: 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be due to such symptoms as, for example: 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment. This may be due to such symptoms as, for example: 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. Id. The list of symptoms in the General Formula does not constitute an exhaustive list, but merely provides examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Factual Background The Veteran submitted a June 2017 letter from his private physician, Dr. FL which indicated that he participated in 18 separate recorded operations from January 1969 to August 1969 against insurgent forces while serving in Vietnam. The physician also indicated that the Veteran witnessed the death of a fellow servicemember and was in two separate altercations with his fellow Marines. The Veteran reported to the physician that he felt the beginnings of his paranoia during service when he was 18 to 20 years old. The physician explained that paranoid schizophrenia typically begins to manifest itself in the individual’s late teens or early 20s. Dr. FL indicated that the Veteran was hospitalized in 1977 and was able to work until 1984 when he had a relapse of symptoms. Dr. FL noted that the Veteran was formally diagnosed with schizophrenia, paranoid, chronic with acute exacerbation in December 1984. During this time, the Veteran reported that he went 5 days and nights without sleeping, he had auditory hallucinations and had religious delusions. See Dr. B statement. Dr. FL also indicated that the Veteran was provided an April 1985 VA examination during which the conducting physician indicated that the Veteran’s degree of psychiatric impairment would be considered moderately severe to severe at this time. During the time of the examination, the Veteran reported having seven or eight nervous breakdowns since 1977 and had been prescribed an antipsychotic. The VA physician indicated that the Veteran had a seven-year history of problems with recurrent episodes of psychotic illness, that generally have been of the variety of paranoid and persecutory delusions associated with auditory hallucinations. Finally, the VA physician opined that the Veteran’s daily activities were moderately severely restricted, and his ability to related to other people was moderately to severely impaired by his psychiatric disabilities. See examination notes. Dr. FL indicated that the Veteran has had continuous outpatient treatment for his schizophrenia since 1984. The Veteran’s private treatment records verify as much. Dr. FL opined that the Veteran has been totally disabled solely due to his chronic schizophrenia, paranoid type, since at least September 1984. Dr. FL further opined that the Veteran has a serious mental disorder, chronic in nature that has incapacitated him socially, vocationally and personally. Analysis The Board finds that the evidence of record supports an earlier effective date of December 17, 1984 for the assignment of a 100 percent rating for PTSD. Starting from this period, the medical treatment records indicate that the Veteran displayed total occupational and social impairment due to such symptoms as persistent delusions and auditory hallucinations. The Board assigns significant probative value to Dr. FL’s opinion that the Veteran has been totally disabled due to his schizophrenia since at least September 1984 because he supported his opinion with a rationale and provided a thorough analysis of the Veteran’s mental treatment history. The Board also assigns significant probative value to the April 1985 VA examiner’s opinion that the Veteran’s degree of psychiatric impairment was moderately severe to severe, his daily activities were moderately severely restricted, and his ability to relate to other people was moderately to severely impaired by his psychiatric disabilities. The Board notes that the Veteran has continuously been treated for his PTSD since 1977 and accordingly the evidence of record supports an increased initial disability rating of 100 percent for PTSD throughout the entire appeal period.   2. An effective date of December 17, 1984 for basic eligibility to Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted. Legal Criteria Basic eligibility for Chapter 35 benefits for the child or surviving spouse of a veteran is established in one of several ways: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran’s death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C.§§ 3500, 3501, 3510; 38 C.F.R. § 3.807. Eligibility to DEA begins on any date between: (1) the effective date of the rating decision, and (2) the date of notification to the person from whom eligibility is derived. 38 U.S.C. § 3512 (a), (d). Given the Board’s grant earlier in this decision of an effective date of December 17, 1984 for the 100 percent evaluation for PTSD, entitlement to DEA arose on December 17, 1984. Therefore, an effective date of December 17, 1984, for the award of DEA is granted. 3. A TDIU rating due to service-connected disabilities is denied. Legal Criteria It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran’s service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran’s level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. SSA determinations are relevant but not binding on the Board because there are significant differences between SSA and VA criteria. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Factual Background Because a 100 percent rating has been assigned for PTSD, that disability will not be considered in determining TDIU eligibility. The only other disability the Veteran has been service connected for is diabetes. At a January 2013 VA examination, the conducting physician opined that the Veteran’s diabetes does not impact his ability to work. Additionally, as indicated above, the Veteran’s private physician, Dr. FL opined that the Veteran has been totally disabled solely due to his chronic schizophrenia with PTSD. Neither the Veteran nor his representative has claimed that he is unemployable due to his diabetes. Analysis The record does not suggest any of the Veteran’s service-connected disabilities, other than PTSD, caused functional impact contemplated by TDIU. The Veteran and his representative have indicated that the Veteran’s PTSD rather than his diabetes mellitus has caused unemployability. Given the documented lack of occupational impact from diabetes mellitus, the Veteran’s claim for a TDIU is denied. Nothing in the treatment records or examination reports suggests that the Veteran’s diabetes mellitus has a significant impact on his employment. In fact, Dr. FL’s medical opinion supports a finding that the Veteran’s PTSD is the only service-connected disability causing functional impact. Additionally, the January 2013 VA examination regarding diabetes mellitus indicated no impact on the Veteran’s ability to work. Because the Veteran’s service-connected diabetes mellitus has caused no significant occupational impact, TDIU based on disabilities other than PTSD is not warranted. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.