Citation Nr: 22016599 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-36 549 DATE: March 22, 2022 ORDER Entitlement to an earlier effective date of March 25, 2017, for the 100 percent disability rating for the service-connected post-traumatic stress disorder (PTSD); anorexia nervosa, binge-eating/purging type; and major depressive disorder, recurrent, severe, with psychotic features and anxious distress, is granted. FINDING OF FACT The evidence of record shows that the Veteran's service-connected PTSD; anorexia nervosa, binge-eating/purging type; and major depressive disorder, recurrent, severe, with psychotic features and anxious distress, have manifested by symptoms that resulted in total occupational and social impairment throughout the appeal period. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of March 25, 2017, for the 100 percent disability rating for the service-connected PTSD; anorexia nervosa, binge-eating/purging type; and major depressive disorder, recurrent, severe, with psychotic features and anxious distress, have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 2013 to March 2017. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at an October 2021 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Entitlement to an earlier effective date of March 25, 2017, for the 100 percent disability rating for the service-connected PTSD; anorexia nervosa, binge-eating/purging type; and major depressive disorder, recurrent, severe, with psychotic features and anxious distress. The Veteran filed a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, in August 2016, before the discharge from active service. In an April 2017 rating decision, the RO granted entitlement to service connection for PTSD and major depressive disorder, recurrent, severe, with psychotic features and anxious distress with a disability rating of 70 percent with an effective date of March 25, 2017, the day following the date of discharge from active service. The Veteran timely filed a notice of disagreement in May 2017 and appealed the matter to the Board in July 2017. Subsequently, in a May 2021 rating decision, the RO increased the disability rating from 70 to 100 percent for PTSD and anorexia nervosa, binge-eating/purging type, with an effective date of April 30, 2021. At the October 2021 Board hearing, the Veteran and his representative argued that the effective date of 100 percent rating for PTSD should be the beginning of the appeal period. The Veteran and his wife testified that the Veteran was discharged from service due to severe PTSD and his condition is the same since his discharge from service. The Veteran also testified that he was hospitalized due to PTSD seven to eight times since his discharge from active service. The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if application therefore is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). As noted above, the Veteran filed the claim of service connection for a psychiatric disorder prior to his discharge from active service, the earliest effective date for the service-connected PTSD can be as early as March 25, 2017, the day following the discharge from active service. Since the Veteran has been pursuing the claim since the filing of the claim and the April 2017 rating decision by fling timely appeal to the Board, the appeal period begins from March 25, 2017, the day following the discharge from active service. The Veteran is receiving 70 percent disability rating for PTSD under diagnostic code 9411 from March 25, 2017, the beginning of the rating period on appeal, and 100 percent rating from April 30, 2021. Thus, the issue before the Board is whether the Veteran's symptoms associated with his service-connected PTSD caused a total occupational and social impairment warranting a disability rating of 100 percent prior to April 30, 2021. 38 C.F.R. § 4.130, Diagnostic Code 9411. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability rating. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); 38 C.F.R. § 4.1. The Board should consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the period of claim on appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). Under diagnostic code 9411, a noncompensable rating is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Id. A 30 percent rating is warranted 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, 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 (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 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 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 work-like setting); inability to establish and maintain effective relationships. Id. A 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 or place; memory loss for names of close relatives, own occupation, or own name. Id. In order to be assigned a specific rating, a veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002). The symptoms listed under each rating are not exhaustive. Id. The key element for a rating under the general formula for mental disorders is the degree of social and occupational impairment caused by those symptoms, rather than how many of the listed symptoms the veteran exhibits. Id. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. In addition to assessing the current severity, frequency, and duration of the Veteran's service-connected psychiatric symptoms during the relevant appeal period, it should also be considered whether such symptoms result in a degree of occupational and social functioning to warrant a higher rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013) (holding that 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, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage). The Board has reviewed the relevant evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence during the appeal period for the issue on appeal. During the November 2017 private inpatient treatment, the clinician noted that the Veteran felt like crying and was not sleeping well. He started having hallucinations and smelling cigarettes when no one around him was smoking. He had been hearing whispers and people calling his name. It was also noted that the Veteran cut himself in the past. During this treatment, the Veteran reported visual hallucinations, seeing somebody from the past. This had been going on and off for the past few months. In an April 2017 VA caregiver program support note, the clinician noted the reports of the Veteran's spouse that the Veteran sees people in the house and takes an anti-psychotic for hallucinations. She stated the last time he was running around the house because he saw people and wanted to bring them back to reality. She also reported that the Veteran forgets conversations, and appointments; and she has to remind him about everything. She reported that in public he struggles, when they go out, which leads to an incident of the Veteran getting angry. In a May 2017 VA treatment record, the clinician noted the Veteran's multiple suicide attempts, chronic suicidal ideation, and self-injurious behavior. In the May 2017 notice of disagreement, the Veteran stated that he has psychotic behavior on regular basis, including self-mutilation, and suicidal and homicidal ideation. A May 2017 record from Social Security Administration notes the Veteran's reports that he spends time with immediate family only and avoids crowded places. In the July 2017 VA Form 9, Appeal to the Board, the Veteran stated that he had been hospitalized thirteen times since July 2014 for the treatment of homicidal and suicidal ideation, and each time he received inpatient treatment for two to eight weeks. The Veteran underwent a VA examination for his psychiatric condition in August 2017, during which the examiner noted the diagnosis of PTSD and major depressive disorder, recurrent, severe, with psychotic features and anxious distress. The examiner noted the symptoms of PTSD as depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; persistent delusions or hallucinations; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner found that the Veteran has a total occupational and social impairment due PTSD symptoms. An August 2019 Order of Department of the Army reflects that the Veteran was removed from temporary disability retired list as of August 20, 2019, and was placed on 100 percent disability. The Veteran underwent another VA examination for psychiatric disorder in November 2019, during which the examiner noted the diagnosis of PTSD and Anorexia Nervosa, Binge-Eating/Purging Type. The examiner noted the symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, and suicidal ideation. The examiner noted impairment level as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Board notes that the examiner did not note a total social and occupational impairment, however, the examiner noted that the Veteran had consistent suicidal ideation with plan of hanging himself, or overdosing on medications, and putting a bag over his head, a week prior to the examination. Therefore, the Board notes that the Veteran level of suicidal ideation is a persistent danger of hurting self, which is one of the enumerated symptoms contemplated by the 100 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran underwent another VA examination for his psychiatric condition in April 2021, during which the examiner noted the diagnosis of PTSD. The examiner noted the symptoms of PTSD as depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impaired judgment; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; and persistent delusions or hallucinations. The examiner found that the Veteran has a total occupational and social impairment due PTSD symptoms. The Board finds that the symptoms of the Veteran's PTSD more nearly approximate total social and occupational impairment because in the August 2017 and April 2021 VA examination reports, the examiner choose this level of impairment. Also, the evidence of record shows that the Veteran has persistent delusions or hallucination, persistent danger of hurting self or others, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, which are the symptoms contemplated by the 100 percent rating. (Continued on the next page) As the most probative evidence of record shows total occupational and social impairment, the maximum 100 percent rating for the service-connected PTSD; anorexia nervosa, binge-eating/purging type; and major depressive disorder, recurrent, severe, with psychotic features and anxious distress, is warranted throughout the appeal period. Hence, entitlement to an earlier effective date of March 25, 2017, for the 100 percent disability rating for the service-connected PTSD; anorexia nervosa, binge-eating/purging type; and major depressive disorder, recurrent, severe, with psychotic features and anxious distress, is granted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tariq, Nadeem, Associate 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.