Citation Nr: A21009773 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 210217-135794 DATE: May 24, 2021 ORDER Entitlement to an initial rating for service-connected posttraumatic stress disorder (PTSD) in excess of 30 percent from March 17, 2014 to May 23, 2018, is denied. Entitlement to a rating of 100 percent for PTSD since May 24, 2018, but no earlier, is granted. Entitlement to an effective date of May 24, 2018, but no earlier, for the grant of special monthly compensation (SMC) based on aid and attendance is granted. Entitlement to an effective date of May 24, 2018, but no earlier, for establishment of basic eligibility to Chapter 35 Dependents' Educational Assistance (DEA) benefits is granted. FINDINGS OF FACT 1. From March 17, 2014 to May 23, 2018, the record reflects that the Veteran's service-connected PTSD symptoms manifested at worst as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Resolving all doubt in favor of the Veteran, since May 24, 2018, the record reflects that the Veteran's service-connected PTSD symptoms manifested as total social and occupational impairment. 3. It is factually ascertainable that as of May 24, 2018 the Veteran's service-connected PTSD resulted in mental incapacity which required care or assistance on a regular basis from the hazards or dangers of the daily environment. 4. As of May 24, 2018, the combined evaluation of the Veteran's service-connected disabilities which were considered static in nature reached a combined evaluation of 100 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating for PTSD in excess of 30 percent from March 17, 2014 to May 23, 2018 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to rating of 100 percent for PTSD since May 24, 2018, but no earlier, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for an effective date of May 24, 2018, but no earlier, for the grant of special monthly compensation (SMC) based on aid and attendance have been met. 38 U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.102, 3.350, 3.352, 3.400, 4.3, 4.7. 4. The criteria for an effective date of May 24, 2018, but no earlier, for establishment of basic eligibility to Chapter 35 Dependents' Educational Assistance (DEA) benefits have been met. 38 U.S.C. §§ 1114 (l), (s), 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1968 to April 1970. In July 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an April 2020 rating decision. In December 2020, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the initial rating decision. In a February 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim of an initial increased rating for service-connected PTSD, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As an initial matter, the Board notes that the RO developed the Veteran's claim of entitlement to higher initial ratings for service-connected PTSD as a claim for earlier effective dates for such ratings. Upon review of the Veteran's representative's communications, it is clear that the Veteran's representative has argued only that the Veteran is currently entitled to a 100 percent rating for his service-connected PTSD to the date of his original March 2014 claim. The Board has therefore recharacterized the Veteran's claim as entitlement to an increased rating rather than a claim for earlier effective dates for increased ratings, and the Veteran is not prejudiced by such recharacterization. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 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. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. When all the evidence is assembled, a determination will be made on the claim. Reasonable doubt will be resolved in favor of the Veteran. If there is a preponderance of the evidence against the claim, the claim will be denied. If the evidence supports the claim or is in relative equipoise, the Veteran will prevail. 38 U.S.C. § 5107 (b); 38 C.F.R. § §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to an initial rating PTSD in excess of 30 percent from March 17, 2014 to May 23, 2018, is denied. 2. Entitlement to a rating of 100 percent for PTSD since May 24, 2018 is granted. The Veteran asserts that his service-connected PTSD is more severe than his initial ratings reflect. Specifically, the Veteran, through his representative, asserts that he is entitled to a 100 percent rating throughout the entire appeal period. An April 2020 rating decision granted service connection for PTSD with a 30 percent rating from March 17, 2014 to January 1, 2020, and a 100 percent rating since January 2, 2020. His PTSD is rated under Diagnostic Code 9411 pursuant to the criteria of a General Rating Formula. See 38 C.F.R. § 4.130. Under the General Rating Formula For Mental Disorders, to include PTSD, a 30 percent rating contemplates 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, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted when there is 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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 occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126 (a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). The Board will consider whether the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, and, if so, the equivalent rating will be assigned. Id. A veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). During the course of this appeal, the rating criteria were revised to update references pertinent to the American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders (5th ed.) (DSM-5). Those changes included removal of the multi-axis system and the Global Assessment of Functioning (GAF) score method of assessment but did not invalidate the previously reported GAF scores. No additional substantive revisions have been made to VA's General Rating Formula for Mental Disorders. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). Under the Diagnostic and Statistical Manual for Mental Disorders (4th ed.) (DSM-IV), the GAF score was previously described for VA purposes as a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). GAF scores ranging between 61 to 70 indicated mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally indicate that the individual is functioning "pretty well," and has some meaningful interpersonal relationships. Scores between 51 to 60 indicate moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). The Board notes that an examiner's classification of the level of psychiatric impairment by a GAF score is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. Use of the term "such as" in the general rating formula for mental disorders at 38 C.F.R. § 4.130 indicates that the symptoms after that phrase do not constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. A June 2014 VA examination report noted that the Veteran did not meet the criteria for a diagnosis of PTSD. The Veteran reported nightmares, but otherwise endorsed no social problems. Objectively, the Veteran was appropriately groomed, had speech quantity and quality within the normal limits, logical thought pattern, appropriate effect, unremarkable mood, appropriate thought content, without hallucination or suicidal ideation, and had satisfactory memory for current events with vague memory for past events. The examiner noted the Veteran's difficulty recalling specifics about his history and found that it could not be determined from the current examination if the Veteran's cognitive function was intact. The examiner opined that the Veteran's symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. A January 2020 VA examination report detailed that as a result of the Veteran's severe dementia, he was unable to participate in the examination. Instead, the examiner utilized details from the Veteran's caregiver to diagnose PTSD. The examiner opined that the Veteran's PTSD symptoms manifested as total occupational and social impairment. The examiner noted that the Veteran's neurocognitive disorder masked many of his PTSD symptoms, and he further noted that it was not possible to differentiate what symptoms were attributable to the PTSD and which were attributable to the neurocognitive disorder. As such, the Board finds that the finding of total occupational and social impairment must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The examination report records the caregiver's assertions that the Veteran's dementia symptoms first began in 2017 as well as her recollection that in 2009 the Veteran would often avoid crowds, pace the floor, was hypervigilant, and had an exaggerated startle. Medical treatment records from the appeal period fail to detail any PTSD symptoms other than a negative February 2014 PTSD screening. A May 24, 2018 memory clinic evaluation report detailed symptoms of progressing frontotemporal dementia with agitation, impulsivity, apathy, and poor judgment. Medical records dated October 31, 2019 confirmed diagnosis of severe dementia. After review of the record, the Board finds that a rating in excess of 30 percent rating for service-connected PTSD from March 17, 2014 to May 23, 2018 is not warranted. The June 2014 VA examination of record found the Veteran was appropriately groomed, had speech quantity and quality within the normal limits, logical thought pattern, appropriate effect, unremarkable mood, appropriate thought content, without hallucination or suicidal ideation, and had satisfactory memory for current events with vague memory for past events. Moreover, the examiner opined that the Veteran's symptoms did not interfere with occupational and social functioning. While the examiner did note that the examination itself was unable to determine whether or not the Veteran's cognitive function was intact, no other symptoms demonstrative of the next higher, 50 percent rating were noted. Similarly, medical treatment records for this time period fail to reflect any PTSD symptoms noted or reported by the Veteran or his caretakers other than nightmares. Thus, the Board finds that the Veteran's PTSD symptoms from March 17, 2014 to May 23, 2018 is best characterized by a 30 percent rating. Resolving all doubt in favor of the Veteran, the Board finds that a 100 percent rating is warranted since May 24, 2018, or the first day evidence of record reflects symptoms suggestive of total social and occupational impairment. While the January 2020 VA examination first determined that the Veteran's PTSD symptoms manifested as total social and occupational impairment, the examiner based this determination on the fact that the Veteran's neurocognitive disability was so severe that it was impossible to differentiate what symptoms were attributable to the PTSD and which were attributable to the neurocognitive disorder. As a result of this finding, the Board must attribute all symptoms of the Veteran's neurocognitive disorder to his service-connected PTSD. Consequently, the earliest indication of PTSD symptoms which could be characterized as total impairment in the available evidence of record is on May 24, 2018, or the date of the first physician evaluation which gave a diagnosis of neurocognitive disability and noted associated symptoms of agitation, impulsivity, apathy, and poor judgment. The Board is aware of the Veteran's representative's argument that several pieces of evidence suggest that the Veteran's neurocognitive disability worsened perhaps earlier than May 24, 2018; however, as detailed above, this evidence is outside of the evidentiary window established by the Veteran-chosen direct review docket. Also, the Veteran's representative has essentially asserted that it is pre-decisional error for the AOJ to not have obtained a retrospective opinion concerning when the Veteran's neurocognitive disorder first became severe enough to be indistinguishable from his service-connected PTSD symptoms. The AMA structure allows remand only where VA has committed error in the duty-to-assist (DTA) prior to the decision on appeal. After a thorough review of the record, the Board finds the arguments of the Veteran's representative unpersuasive. As determined herein, the evidence of record presents a clear date as to when the Veteran's neurocognitive disorder was first diagnosed, and the Board has attributed those symptoms to the Veteran's service-connected disability. Mittleider, 11 Vet. App. 181. As such, the Board finds no DTA error. In summation, after review of the record the Board finds that the Veteran's service-connected PTSD warranted a 30 percent rating from March 17, 2014 to May 23, 2018, and resolving all doubt in favor of the Veteran, the Veteran's service-connected PTSD warrants a 100 percent rating since May 24, 2018. Earlier Effective Date In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(1). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(2). In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under § 5110(b)(2) which provides that 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, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). In VAOPGCPREC 12-98, VA's General Counsel noted that 38 C.F.R. § 3.400 (o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred; that this section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. The Court, in Hazan, noted that 38 U.S.C. § 5110 (b)(2) required a review of all the evidence of record (not just evidence not previously considered) as to the disability in order to ascertain the earliest possible effective date. Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan, 10 Vet. App. at 521. 3. Entitlement to an effective date of May 24, 2018, for grant of SMC based on aid and attendance, is granted. The Veteran contends he is entitled to an effective date earlier than January 2, 2020 for the award of SMC based on the need for aid and attendance. In an April 2020 rating decision, the AOJ inferred a claim for SMC based on schedular eligibility and granted SMC based on aid and attendance with an effective date of January 2, 2020. In this case, the record reflects the Veteran has essentially contended he has required the regular aid and attendance of another person since service connection was established for PTSD. Stated another way, it would appear that the present claim is the equivalent of a disagreement with the initial rating assigned for the PTSD as it did not establish SMC. As such, the Board finds that the facts of this case reflect that the date of claim for SMC based upon the need for aid and attendance is the same as his claim of service connection for PTSD, which has been determined to be March 17, 2014. The Board must now determine whether it was factually ascertainable that the Veteran met the criteria for SMC based upon the need for regular aid and attendance during the period from March 17, 2014, to the present effective date of January 2, 2020. The Board notes that the earlier effective date claim was essentially denied on the basis it was not factually ascertainable prior to January 2, 2020 that the Veteran satisfied the criteria for SMC benefits. However, as detailed herein, the Board has determined that the Veteran was totally impaired as of May 24, 2018. Medical treatment records used to determine the factually ascertainable date of total impairment herein also demonstrate the Veteran's need for aid and attendance of another person as the criteria for total impairment under Diagnostic Code 9411 encompasses persistent danger of hurting self or others; and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). These findings are further confirmed and supported by the January 2020 VA examination report of record. Reiterating that the law mandates resolving all reasonable doubt in favor of the Veteran, to include the degree/severity of his service-connected disability, the Board finds that it was factually ascertainable as of May 24, 2018 that the Veteran's service-connected PTSD resulted in mental incapacity which requires care or assistance on a regular basis from the hazards or dangers of the daily environment. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. Therefore, he is entitled to SMC benefits based upon the need for regular aid and attendance as of that date. 2. Entitlement to an effective date of May 24, 2018 for establishment of basic eligibility to Chapter 35 DEA benefits is granted. The Veteran asserts that he is entitled to an effective date earlier than January 2, 2020 for the establishment of eligibility to DEA benefits. Here, an April 2019 rating decision granted eligibility to DEA benefits with an effective date of January 2, 2020. Basic eligibility for DEA benefits is derived from a veteran who was discharged under other than dishonorable conditions and has a permanent and total service-connected disability. See 38 C.F.R. § 21.3021. In this case, basic eligibility for DEA has been established based on a finding that the Veteran was honorably discharged and has a total service-connected disability, permanent in nature. Rather, the issue here concerns the effective date for establishment of basic eligibility to Chapter 35 DEA benefits. As eligibility for DEA benefits in this case is predicated on the Veteran having a permanent and total disability, the effective date of such eligibility relies on the date the Veteran is found to have a permanent and total disability. As granted herein, the Veteran's sole service-connected disability of PTSD has a rating of 100 percent effective May 24, 2018 based upon his total impairment. Since eligibility for DEA benefits is predicated on a finding of permanent and total disability in this case, the effective date of such eligibility cannot precede the date permanent and total disability was awarded. Accordingly, an effective date of May 24, 2018, and no earlier, for the grant of DEA benefits is granted. The law is dispositive of the issue. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Roya Bahrami Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Peden 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.