Citation Nr: 21041338 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-27 094 DATE: July 8, 2021 ORDER An effective date no earlier than August 16, 2011 for the award of service connection for posttraumatic stress disorder (PTSD) is granted. A rating in excess of 30 percent for service-connected psychiatric impairment prior to September 12, 2014, to include a total (100 percent) rating, is denied. An effective date earlier than September 12, 2014 for the award of basic eligibility for Dependents' Educational Assistance (DEA)) under 38 U.S.C. Chapter 35 is denied. An effective date earlier than September 12, 2014 for the award of special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is denied. FINDINGS OF FACT 1. Service connection was established for the Veteran's acquired psychiatric disorder, diagnosed as mood disorder, effective March 27, 2007; he has not disagreed with the effective date assigned for that award. 2. It was factually ascertainable from August 16, 2011, and no earlier, that the Veteran had a diagnosis of PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM). 3. Prior to September 12, 2014, it was not factually ascertainable that the symptomatology associated with the Veteran's service-connected acquired psychiatric disorder was manifested by at least 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 (e.g., 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. 4. The basic eligibility criteria for Chapter 35 (DEA) benefits were not met prior to September 12, 2014. 5. Prior to September 12, 2014 the Veteran did not have a single service-connected disability rated as 100 percent, to include on the basis of individual unemployability; nor was he shown to be permanently housebound as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an effective date no earlier than August 16, 2011 for the award of service connection for PTSD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.125. 2. The criteria for a rating in excess of 30 percent for service-connected psychiatric impairment prior to September 12, 2014 have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.130. 3. The criteria for an effective date earlier than September 12, 2014 for the award of basic eligibility for education benefits under Chapter 35 (DEA) have not been met. 38 U.S.C. §§ 3500, 3501, 3510, 5107, 5110; 38 C.F.R. §§ 3.400, 3.807. 4. The criteria for an effective date earlier than September 12, 2014 for the award of SMC at the housebound rate have not been met. 38 U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.350, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1991 to May 1991 and from December 1995 to July 1996. He also had service in the Army National Guard, to include a period of active duty for training from May 1976 to September 1976. His decorations include the Southwest Asia Service Medal with two Bronze Service Stars. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The RO granted service connection for PTSD (previously evaluated as mood disorder) and assigned a 100 percent rating therefor, effective November 26, 2014. The RO also granted SMC at the housebound rate and basic eligibility for DEA, effective November 26, 2014. In May 2015, the Veteran asked for reconsideration of the assigned effective dates. In July 2015, the RO revised the effective date for all three awards to September 12, 2014 on the basis of clear and unmistakable error. Thereafter, the Veteran initiated an appeal, seeking a still-earlier effective date of March 27, 2007 for all three awards. In March 2020, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge, sitting in St. Louis, Missouri. A transcript of that hearing has been associated with the record. In May 2020, the Board remanded the case for further development, to include obtaining and associating with the record all records of the Veteran's VA treatment, to particularly include any such records dated between June 2011 and August 2013. After taking further action, to particularly include associating all available VA treatment records with the claims file, the AOJ confirmed and continued the prior determinations and returned the case to the Board. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In the May 2020 remand, the Board noted, in pertinent part, that a February 2008 rating decision granted service connection and a 30 percent rating for a mood disorder, effective March 27, 2007. The Board further noted that additional VA medical records were obtained and associated with the Veteran's claims file during the one-year period following the adjudication of his original claim in February 2008. As the RO did not act on that evidence after obtaining it, the Board concluded the matters on appeal could be considered de novo, without respect to the February 2008 adjudication. Effective Dates In general, the effective date for an award of service connection is the date of receipt of the claim, or the date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application to reopen. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Similarly, the effective date for an increased rating will be the date of receipt of the claim, or the date entitlement arose, whichever is later. Id. 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 occurred if a claim is received within 1 year from such date; otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). For purposes of this case, the date of claim is considered to be March 27, 2007, when service connection was established for a mood disorder. The Veteran has not disagreed with the effective date of that award. He has contended, to include at his March 2020 hearing, that his PTSD was misdiagnosed as mood disorder and that service connection should be in effect for PTSD from March 27, 2007. He has also contended that he should be assigned a 100 percent rating from that date. 1. Entitlement to an effective date earlier than September 12, 2014 for the award of service connection for PTSD Service connection for PTSD requires, among other things, medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a). At the time of the Veteran's March 2007 claim, 38 C.F.R. § 4.125(a) required that the diagnosis be in accordance with the Fourth Edition of the DSM (DSM-IV). Since that time, VA has updated references in its regulations to the Fifth Edition of the DSM (DSM-5). See Schedule for Rating DisabilitiesMental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015). Inasmuch as specified medical criteria are required for a valid diagnosis of PTSD by VA regulation, competent medical evidence is required to establish a diagnosis. Treatment records dated in November 2005 note that a PTSD screen was positive at that time, and that the Veteran was referred to a Vet Center. However, that record was dated prior to the period presently under consideration. Significantly, subsequent records dated in July 2006 show that another PTSD screen was negative. After a thorough review of the record, it is the Board's conclusion that the Veteran was not diagnosed with PTSD in accordance with the pertinent DSM criteria at any time during the period on appeal prior to August 16, 2011. Treatment records throughout the period from March 2007 to August 2011 reflect treatment for an acquired psychiatric disorder and note active problems that included mood disorder and depression, but not PTSD. A January 2008 VA mental disorders examination resulted in a diagnosis of a mood disorder due to general medical conditions. He was not diagnosed with PTSD at that time. Treatment records from March 2008 reflect the presence of possible PTSD symptoms when screened, but indicate that the Veteran was not able to recall a specific event that triggered recurrent thoughts or nightmares. It was also noted that PTSD was not on the active problems list, and PTSD was not diagnosed at that time. The first competent medical evidence of PTSD during the period on appeal was a positive screen in records dated August 16, 2011. Thereafter, various medical records, including VA examination reports, reflect diagnoses of PTSD. For example, treatment records dated in February 2012 show findings of mild PTSD. In addition, treatment records dated in April 2012 state that the Veteran had Axis I diagnoses of mood disorder and PTSD in accordance with DSM-IV. Resolving reasonable doubt in the Veteran's favor, the Board finds that it was factually ascertainable that the Veteran's service-connected acquired psychiatric disorder warranted a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 from the time of the positive PTSD screening on August 16, 2011. Accordingly, his service-connected disability warrants recognition as PTSD effective from that date. No earlier date can be assigned, however. Simply put, although the Veteran feels that he had PTSD during the period on appeal prior to August 16, 2011, the medical evidence preponderates against that conclusion. To that extent, the appeal of this issue must be denied. 2. Entitlement to a rating in excess of 30 percent for service-connected psychiatric impairment prior to September 12, 2014, to include a total (100 percent) rating. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's service-connected acquired psychiatric disorder, however characterized, is evaluated under the general rating formula used to rate psychiatric disabilities other than eating disorders, pursuant to 38 C.F.R. § 4.130. A change in diagnosis does not, in and of itself, trigger the assignment of a higher rating. Rather, the question is whether the record demonstrates that the service-connected disability, however diagnosed, warranted a rating in excess of 30 percent prior to September 12, 2014, to include whether a total (100 percent) rating was warranted prior to that date. Under the general rating formula, a 30 percent disability rating is in order when there is 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, and mild memory loss (such as forgetting names, directions, recent events). 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 (e.g., 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. A 70 percent rating is warranted where there is 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 worklike setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted where 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 or place; or memory loss for names of close relatives, own occupation, or own name. The United States Court of Appeals for Veterans Claims (Court) has held that the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. Use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held in Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Initially, the Board notes that while the Veteran now contends that a 100 percent rating is warranted for psychiatric impairment from March 2007, he previously indicated in a July 2008 statement that he was satisfied with his then-current ratings. Although the statement was more specifically designed as a withdrawal of an appeal as to other increased rating claims, he was apparently not disputing the 30 percent rating assigned for his acquired psychiatric disorder at that time. In any event, the Board finds that it was not factually ascertainable prior to September 12, 2014 that the symptomatology associated with the Veteran's service-connected acquired psychiatric disorder was manifested by at least occupational and social impairment with reduced reliability and productivity so as to warrant the next higher rating. During a December 2007 VA general medical examination, the Veteran denied a history of anxiety or other mental health conditions, although it was noted that he was currently being treated for depression. It was noted at that time that he credibly denied current and past suicidal ideation and homicidal ideation, plans, or attempts. On psychiatric and personality evaluation, he was found to be cooperative and in no acute distress. He spoke clearly and provided appropriate responses; his eye contact was good; he appeared his stated age; he interacted appropriately with the examiner; his affect varied; and he appeared capable of managing benefit payments in his/her own best interest without restrictions. A January 2008 mental disorders examination included findings of depression, anxiety, and moderate sleep disturbance. Similar symptoms were noted in the treatment records throughout the period from March 2007 to September 12, 2014. Such symptomatology is generally associated with the current 30 percent rating in effect for this period. At the January 2008 VA examination, the Veteran complained of concentration and memory problems. That finding is consistent with the criteria of mild memory loss associated with a 30 percent rating. He also indicated that he had had suicidal ideation in the past during periods of marital crisis. However, he had been married to his present wife for seven years, and while there was marital friction, he denied that they were on the verge of divorce. Further, he denied having suicidal thoughts presently. The January 2008 VA examination report also noted that the Veteran had not worked since March 2007. He previously worked as a salesman and designer, and was presently in school and was scheduled to graduate in June 2008. Although he expressed concern that his grades would suffer due to problems with concentration and memory, they apparently had not done so as of yet. His schooling was undertaken in accordance with a VA vocational and rehabilitation plan to prepare for employment in CAD (computer aided drafting). Objective symptoms noted at the January 2008 VA examination included that the Veteran's manner suggested physical discomfort and dysphoria. His speech was logical and related, with no indication of hallucinations, delusions, or formal thought disorder. There was no flight of ideas and no loosening of associations. Further, no obsessions or compulsions were elicited, although the Veteran did a good bit of worrying, taken as a symptom of anxiety. He was oriented in all three spheres with adequate memory and concentration for purposes of the examination. He complained of problems with both, especially regarding school work. The Board finds that these objective symptoms are consistent with a 30 percent rating, and do not meet or more nearly approximate the criteria for at least a 50 percent rating. The Board also observes that vocational and rehabilitation records, as well as other evidence on file, reflect that the Veteran continued to undergo schooling and training through 2012, to include pursuing a Bachelor of Science in Construction Management. A treatment record dated in April 2008 indicates that the Veteran had felt increasingly depressed for the past six months. However, neither that record nor any of the other medical evidence reflects that it was factually ascertainable that his symptomatology at that time resulted in occupational and social impairment to the extent necessary for a rating in excess of 30 percent. Treatment records from October 2008 reflect, for example, that he reported that his depression was difficult but manageable. His depression was also noted as being relatively stable, and it was observed that he did not see Mental Health on a regular basis. Treatment records from November 2008 note that the Veteran was alert and oriented to person, place, and time. His mood and affect were normal, and recent and remote memory were grossly intact. His judgment and insight were also grossly normal. Treatment records from May 2009 note a past history of depression and note that he continued to have trouble sleeping. Although he indicated significant stress in his life due to employment, he felt his depression was stable. Treatment records from June 2010 include a negative depression screening. Treatment records from July 2010 note that the Veteran was in no acute distress. Mental status evaluation showed that he was alert and oriented times three. His speech was clear and fluent with no evidence of dysarthria or aphasia. Recent and remote memory were intact. Further, his fund of knowledge was good. Treatment records dated in March and May 2011 also show negative depression screening. Treatment records dated in February 2012 note anger/irritability, but it was described as mild. There is no evidence that it resulted in the type of impaired impulse control, to include periods of violence, contemplated by the criteria for a 70 percent rating. Further, while he reported a history of a past suicide attempt, he consistently denied suicidal ideation in the treatment records for this period. Treatment records in April 2012 continued to show that the Veteran was alert and oriented, with speech of normal rate and rhythm; thought process and association was normal, coherent; there was no unusual thought content; insight and judgment were good; and memory was intact. Similar findings were noted in treatment records dated in May 2012, November 2012, January 2013, and September 2013. Records from August 2013 note that the Veteran's thoughts of suicide and suicide attempt were 15 years ago, which was prior to the March 2007 effective date of service connection for his acquired psychiatric disorder. The Board also notes there is evidence the Veteran was employed from 2011 to 2014. See, e.g., March 2015 VA PTSD examination. In light of the foregoing, and after a thorough review of all of other evidence pertaining to period under consideration, the Board finds that the preponderance of the evidence establishes that the Veteran did not meet or more nearly approximate the criteria for a rating in excess of 30 percent prior to September 12, 2014, to include on the basis of "staged" ratings. The appeal of this issue is denied. 3. Entitlement to an effective date earlier than September 12, 2014 for the award of basic eligibility for DEA benefits under Chapter 35 Basic eligibility for Chapter 35 benefits for the child or surviving spouse of a veteran may be established if: (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. In this case, the Veteran is still living. Therefore, the only legal basis for establishing basic eligibility for Chapter 35 benefits is his having a permanent and total service-connected disability. As stated above, the Board has concluded that he is not entitled to a rating in excess of 30 percent for service-connected psychiatric impairment prior to September 12, 2014. No other service-connected disability was rated as 100 percent disabling prior that date, and his overall combined rating was 80 percent at that time. Accordingly, there can be no award of basic eligibility for Chapter 35 DEA benefits prior to September 12, 2014. The appeal of this issue must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 4. Entitlement to an effective date earlier than September 12, 2014 for the award of SMC at the housebound rate Under 38 U.S.C. § 1114(s) additional compensation is available for a veteran who is in receipt of a 100 percent rating and has additional service-connected disability or disabilities independently ratable at 60 percent or more; or, is permanently housebound due to service-connected disabilities. The requirement of being permanently housebound is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises, or if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.350(i). The Court has held that a 100 percent schedular rating does not render TDIU moot if the TDIU would assist the veteran in obtaining SMC pursuant to 38 U.S.C. § 1114(s). A TDIU rating can satisfy the need for a rating of 100 percent if it can be sustained by a single disability. In this case, the Veteran does not have a single service-connected disability rated as 100 percent prior to September 12, 2014, to include on the basis of TDIU. Moreover, he has not contended, nor does the record otherwise reflect, that he was permanently housebound due to his service-connected disabilities prior to that date. The appeal of this issue must also be denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board John Kitlas, 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.