Citation Nr: 22014977 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 15-44 649 DATE: March 15, 2022 ORDER Effective on and after February 3, 2009, a 100 percent rating for posttraumatic stress disorder (PTSD) is granted. Prior to February 3, 2009, an initial rating in excess of 70 percent for PTSD is denied. FINDINGS OF FACT 1. On and after February 3, 2009, the Veteran's PTSD is reasonably shown to have been manifested by symptoms productive of total occupational and social impairment. 2. Prior to February 3, 2009, the Veteran's PTSD was manifested by no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating, on and after February 3, 2009, for PTSD, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for an initial rating in excess of 70 percent, prior to February 3, 2009, for PTSD, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1968 to April 1971. To clarify the procedural history in this case, the Board of Veterans Appeals (Board) notes that the Veteran filed his initial claim for service connection for PTSD on May 29, 2006. This appeal comes before the Board from a May 2009 rating decision in which the Agency of Original Jurisdiction granted service connection for PTSD and assigned a 50 percent rating, effective February 3, 2009. In a November 2012 rating decision, the Agency of Original Jurisdiction granted an earlier effective date of May 29, 2006, for the award of service connection for PTSD, but the Veteran did not appeal that decision. Thereafter, a May 2013 rating decision granted a 100 percent rating for PTSD, effective on and after March 31, 2011, and denied a rating in excess of 50 percent prior to that date. In an October 2015 rating decision, the Agency of Original Jurisdiction granted a 70 percent rating effective on and after February 26, 2009, and denied a rating in excess of 50 percent prior to February 26, 2009. In a March 2018 rating decision, the Agency of Original Jurisdiction granted 70 percent rating effective back to May 29, 2006. Additionally, in March 2018, the Agency of Original Jurisdiction granted a total rating based on individual unemployability due to service-connected disability (TDIU), effective on and after August 5, 2009. Thereafter, in a July 2019 rating decision, the Agency of Original Jurisdiction granted an earlier effective date of February 3, 2009, for the TDIU, noting this was the day after the Veteran's last day of employment. As the award represented a full grant of the benefit sought on appeal, the issue of entitlement to a TDIU will not be addressed herein. 1. Entitlement to an initial rating in excess of 70 percent, prior to March 31, 2011, for PTSD. The Veteran contends that an initial 100 percent rating is warranted for his service-connected PTSD, effective from May 29, 2006, the date when his initial claim was received. Disability ratings are determined by application of the Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's PTSD is currently rated as 70 percent disabling effective from May 29, 2006, and prior to March 31, 2011, and 100 percent disabling on and after March 31, 2011, under Diagnostic Code 9411. A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. Where there is a question as to which of two disability 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 evaluation will be assigned. 38 C.F.R. § 4.7. 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 (2015). 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. McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000). 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." Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). After reviewing the record prior to March 31, 2011, the Board observes that the Veteran worked full-time as a helicopter pilot through February 2, 2009. Given that the Veteran was working through that date, the Board is unable to find that his service was productive of total occupational impairment prior to February 3, 2009, as would warrant a 100 percent rating under Diagnostic Code 9411. A total 100 percent rating requires both total social and total occupational impairment due to the service-connected disorder. Accordingly, the Board finds that the weight of the evidence is against assignment of a rating in excess of 70 percent for the Veteran's PTSD prior to February 3, 2009, as during that period his PTSD was manifested by symptomatology resulting in no more than occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. Effective on and after February 3, 2009, however, the Board finds that the symptoms associated with the Veteran's PTSD more nearly approximate the criteria for a 100 percent rating under Diagnostic Code 9411. In reaching this determination, the Board notes that review of the competent evidence for this period shows that the Veteran experienced an increase in the frequency and intensity of his symptoms. Further, in the April 2009 VA examination report, it was noted that the Veteran had been hospitalized twice recently for psychiatric treatment, he had to quit work due to PTSD symptoms, and he had a good relationship with his parents, but not his siblings or his kids. He had mood swings ranging from numb to anxious and anxiety, and his depressed mood was near-continuous and affected his ability to function independently. He did not find much joy in life, anti-depressants made his mood and anxiety worse, he had panic attacks more than once per week, and he isolated and had no ability to connect. His PTSD symptoms contributed to conflict between him and his boss, which escalated to near violence, due to the Veteran's irritability. In a March 2011 report, the Veteran's treating psychiatrist, noted treating him since 2006, and indicated the Veteran preferred to be alone with dogs and horses, lived in an isolated place in the Andes in Chile, had no friends, was not able to continue his family life, and preferred to not communicate with people. It was also noted that the goal of the Veteran's psychiatric treatment was to not return to work. Based on a review of all of the evidence of record, the Board finds that the service connected psychiatric symptoms due to PTSD most closely approximated the criteria for a 100 percent schedular rating under Diagnostic Code 9411, effective on and after February 3, 2009. Therefore, a 100 percent schedular rating, effective on and after February 3, 2009, is warranted for the Veteran's service-connected PTSD. A rating in excess of 70 percent prior to February 3, 2009, is not warranted. A.M. CLARK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Casula 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.