Citation Nr: 22013474 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-43 479 DATE: March 9, 2022 ORDER Entitlement to an effective date earlier than October 15, 2014, for the assignment of a 100 percent evaluation for panic disorder/agoraphobia with mixed anxiety and depressed mood is denied. Entitlement to an effective date earlier than October 15, 2014, for the award of the grant of basic eligibility for Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. The Veteran's claim for an increased rating for panic disorder/agoraphobia with mixed anxiety and depressed mood was received on October 15, 2014. No factually ascertainable increase in the disability is shown within the one-year period prior to the claim. 2. The evidence demonstrates that October 15, 2014, is the earliest date that the criteria for basic eligibility to DEA under 38 U.S.C. Chapter 35 was met. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than October 15, 2014 for the assignment of a 100 percent evaluation for panic disorder/agoraphobia with mixed anxiety and depressed mood are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an effective date earlier than October 15, 2014 for the award of the grant of basic eligibility for DEA under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 1155, 3501, 3510, 5107, 5113; 38 C.F.R. §§ 3.340, 3.341, 3.400, 3.807(a), 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1972 to December 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Effective Date Generally, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date for an increase will typically 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). However, 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 one year from such date; otherwise, the effective date will be the date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (o)(2). For earlier effective date increased rating claims, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). 1. Entitlement to an effective date earlier than October 15, 2014, for the assignment of a 100 percent evaluation for panic disorder/agoraphobia with mixed anxiety and depressed mood. The Veteran generally asserts that he warrants an earlier effective date for the grant of a 100 percent disability rating for his service-connected panic disorder/agoraphobia with mixed anxiety and depressed mood. On October 15, 2014, the RO received the Veteran's claim for an increased disability rating for panic disorder/agoraphobia with mixed anxiety and depressed mood. Upon review of the evidence of record the Board finds that the October 15, 2014, claim (VA 21-526EZ, Fully Developed Claim (Compensation)) is the earliest evidence that articulates an intent on the part of the Veteran to seek this claim for benefits. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). In January 2015, the RO granted a 100 percent rating for the Veteran's panic disorder/agoraphobia with mixed anxiety and depressed mood with an effective date of October 15, 2014. The Board finds that it is not factually ascertainable that a 100 percent rating for panic disorder/agoraphobia with mixed anxiety and depressed mood was warranted before October 15, 2014. See 38 C.F.R. § 3.400(o). Under Diagnostic Code 9412, a 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. 38 C.F.R. § 4.130. Here, VA treatment records note that the Veteran has symptoms of anxiety and depression. One treating psychiatrist noted that the Veteran is "anxious with underlying depressed mood, although he is able to smile & laugh at times and has an intact sense of humor. Somatic preoccupation with overly inclusive responses to questions at times. Polite and respectful. Not currently agitated, delusional, hallucinating, or suicidal. Insight and judgment are fair. Average to above average intelligence." See VA treatment note dated January 8, 2014. This finding is similar to other clinical findings for the one-year period prior to October 15, 2014. Additionally, VA treatment records do not indicate symptoms such as gross impairment in thought processes or communication; persistent delusions of 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. The Veteran's treating psychiatrists also made no clinical findings of such symptoms. Additionally, during this period, the Veteran engaged with his family, frequently played chess online, and engaged with his health care providers without additional support from family. There is no competent lay or medical evidence relating to the severity of the Veteran's panic disorder/agoraphobia with mixed anxiety and depressed mood in the one year prior to his October 2014 claim. The January 28, 2015, VA examination is the first medical evidence where the Veteran's panic disorder/agoraphobia with mixed anxiety and depressed mood was determined to meet the 100 percent disability rating for panic disorder/agoraphobia with mixed anxiety and depressed mood. The evidence in the year prior to the increased rating claim did not reflect a worsening of the Veteran's panic disorder/agoraphobia with mixed anxiety and depressed mood approximating total social and occupational impairment. It was therefore not factually ascertainable that the criteria for a 100 percent rating were met. Thus, an effective date earlier than October 15, 2014, for an increased rating for panic disorder/agoraphobia with mixed anxiety and depressed mood is not warranted. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to an effective date earlier than February 14, 2012, for the assignment of a 100 percent evaluation for panic disorder/agoraphobia with mixed anxiety and depressed mood is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application), 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an effective date earlier than October 15, 2014, for the award of the grant of basic eligibility for DEA under 38 U.S.C. Chapter 35 The Veteran generally asserts that he warrants an earlier effective date for basic eligibility to DEA benefits under 38 U.S.C. Chapter 35. 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. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, "eligibility date" means the date on which the individual became an eligible person as defined by 38 U.S.C. § 5113(a)(1), and "initial rating decision" means a decision by VA that establishes the veteran's total disability as permanent in nature. 38 U.S.C. § 5113(b)(3). In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) the Veteran's discharge from service under conditions other than dishonorable; and (2) the Veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). A permanent total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. Id. The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based upon an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(8). In a January 2015 rating decision, the RO awarded the Veteran basic eligibility to DEA benefits, effective October 15, 2014, based on the determination that he had a permanent and total service-connected disability by virtue of his combined 100 percent evaluation. Prior to this date, the Veteran's combined disability rating was 80 percent disabled. Subsequently, the Veteran appealed for an earlier effective date prior to October 15, 2014, for the award of the grant of a 100 percent disability rating for his panic disorder/agoraphobia with mixed anxiety and depressed mood. That appeal has been denied, as detailed above. Since the effective date for DEA benefits is directly related to a finding that the Veteran has a total disability that was permanent in nature, an effective date prior to October 15, 2014, is not warranted, as the effective date of his 100 percent disability rating for his panic disorder/agoraphobia with mixed anxiety and depressed mood has not changed. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The preponderance of the evidence is against the assignment of an effective date earlier than October 15, 2014 for the award of the grant of basic eligibility to DEA benefits under 38 U.S.C. Chapter 35. Thus, since the Board finds no legal basis for assignment of an earlier effective date, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to an effective date earlier than October 15, 2014, for the award of the grant of basic eligibility for DEA under 38 U.S.C. Chapter 35 is warranted. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application as to this claim. Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application), 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.