Citation Nr: A25035283 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210715-172691 DATE: April 16, 2025 ORDER Entitlement to an effective date prior to April 29, 2020, for the 100 percent evaluation of post-traumatic stress disorder (PTSD) with alcohol use disorder is denied. Entitlement to an earlier effective date prior to April 29, 2020, for the award of basic eligibility to Dependents' Educational Assistance (DEA) is denied. FINDINGS OF FACT 1. The evidence weighs persuasively against an effective date earlier than April 29, 2020, for the 100 percent evaluation of post-traumatic stress disorder (PTSD) with alcohol use disorder. 2. The Veteran's PTSD did not manifest, or approximate, total occupational and social impairment prior to April 29, 2020. 3. The Veteran did not meet the criteria for basic eligibility of DEA prior to April 29, 2020. CONCLUSION OF LAW 1. The criteria for an effective date prior to April 29, 2020, for the 100 percent evaluation of PTSD with alcohol use disorder are not met. 38 U.S.C. §§ 5101, 5110, 7105; 38 C.F.R. §§ 3.1, 3.156, 3.303, 3.400. 2. The criteria for an effective date prior to April 29, 2020, for the grant of basic eligibility to DEA have not been met. 38 U.S.C. §§ 3501, 5110, 5113; 38 C.F.R. §§ 3.400, 3.807(a), 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Air Force from August 2000 to August 2006. The rating decision on appeal was issued in October 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the July 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the August 2020 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran, or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Earlier Effective Date Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim. 38 U.S.C. § 5110(b)(2)(C)(3). See 38 C.F.R. § 3.400(o)(2). The phrase "otherwise, date of receipt of the claim" applies only if a factually ascertainable increase in disability occurred within one year prior to filing the claim for an increased rating. See Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). Moreover, the term "increase" as used in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511, 519 (1997). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. Prior to March 24, 2015, VA recognized formal and informal claims. The amendments also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. § 3.151, 3.155. The amended regulations apply only to claims filed on or after March 24, 2015. Because this claim was initiated after that date, the amended regulations apply. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). 1. Entitlement to an effective date prior to April 29, 2020, for the 100 percent evaluation of PTSD with alcohol use disorder. The Veteran initially submitted a claim for entitlement to service connection for PTSD on March 9, 2018. See VA 21-526EZ, Fully Developed Claim (March 2018). A March 2020 rating decision granted service connection for PTSD with an evaluation of 70 percent effective March 9, 2018. The Veteran did not appeal this rating decision. Thereafter, the Veteran sought an increased evaluation on April 29, 2020, and an August 2020 rating decision granted the Veteran a 100 percent evaluation effective April 29, 2020 (the date of his claim). See Rating Decision - Narrative (August 2020). The Veteran seeks the earliest allowable effective date for the evaluation of 100 percent for PTSD. See VA Form 10182 Notice of Disagreement (July 2021). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under the General Formula, a 70 percent rating is assigned when 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when the disorder causes total occupational and social impairment due to symptoms such 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 cause total occupational and social impairment. The Veteran underwent a VA examination in June 2020. The Veteran reported that he had only recently lost his job due to tardiness. Prior to that he worked at another transit company but was let go due to his criminal history. The Veteran told the examiner that he was contemplating a move to the east coast with his family for additional job opportunities. Socially, the Veteran reported visiting family in New York. He stated he has enjoyed staying with his cousin and was contemplating relocating in order to access greater social support. The Veteran further reported that he maintains a close-knit group of military friends. The Veteran stated that he enjoys going for walks and staying active. See C&P Exam (July 2020). The mental status examination revealed the Veteran exhibited depressed mood; anxiety; suspiciousness; near-continuous panic attacks; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and suicidal ideation. However, the Veteran was dressed in clean, casual attire. His hygiene and grooming were appropriate. The Veteran maintained appropriate eye contact. His speech was clear and structurally organized. He described his mood as "alright", and his affect was neutral. The Veteran's thought processes were logical, and goal directed. There was no report of hallucinations, delusions, or perceptual disturbance and none were observed through the course of evaluation. The Veteran was oriented and was polite and cooperative for the duration of the examination. Based on these findings, the VA examiner noted that the Veteran experienced occupational and social impairment with deficiencies in most areas, but the Veteran did not experience total occupational and social impairment. See C&P Exam (July 2020). There are no reasons or bases requirement imposed on medical examiners. An adequate medical report must rest on correct facts and reasoned medical judgment so as inform the Board on a medical question and facilitate the Board's consideration and weighing of the report against any contrary reports. See Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012); see also, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, the June 2020 examination was provided by a VA medical professional who possessed the necessary education, training, and expertise to provide the requested examination. Additionally, the examiner's findings were based on a review of the Veteran's record and accompanied by sufficient information regarding the Veteran's symptoms. The examination finding indicate the Veteran was employed just prior to the examination. While he was not working at the time of the examination, the evidence does not indicate that he was terminated due to his PTSD. Moreover, he reported that he was looking for a job, demonstrating the Veteran himself did not believe he experienced total occupational impairment. In terms of social impairment, the Veteran reported that he maintains a close-knit group of military friends and that he got along well with his family. Finally, the VA examiner noted that while the Veteran experienced occupational and social impairment with deficiencies in most areas, he did not experience total occupational and social impairment. Based on the foregoing, the Board finds the June 2020 examination and findings are adequate and constitute highly probative evidence weighing substantially against the Veteran's claim. Again, a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. Here, the Veteran requested an earlier effective date for the receipt of his 100 percent evaluation just over a month after it was granted by the AOJ. However, even construing the Veteran's claim liberally as a request for a higher initial rating, the probative evidence does not demonstrate the Veteran experienced total social or occupational limitation prior to April 29, 2020. Thus, the date entitlement arose is the later between the date of the receipt of claim and the date the entitlement arose, and an earlier effective date is thus not warranted. Based on the foregoing, the evidence does not establish an effective date prior to April 29, 2020, but rather weighs persuasively against the claim. Therefore, the benefit of the doubt doctrine is not for application and an effective date before April 29, 2020, is denied. 2. Entitlement to an effective date prior to April 29, 2020, for basic eligibility to Dependents' Educational Assistance denied. The Veteran seeks an earlier effective date for Dependents' Educational Assistance benefits pursuant to 38 U.S.C. Chapter 35. See VA Form 10182 Notice of Disagreement (July 2021). For the purposes of Dependents' Educational Assistance under 38 U.S.C. chapter 35, the child, spouse or surviving spouse of a Veteran or service person will have basic eligibility if the Veteran: (1) Was discharged from service under conditions other than dishonorable, or died in service; and (2) 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) Died as a result of a service-connected disability; or (if a serviceperson) (5) Is on active duty as a member of the Armed Forces and (i) Now is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign Government or power; or (ii) Has been determined by VA to have a total disability permanent in nature incurred or aggravated in the line of duty during active military, naval, or air service; is hospitalized or receiving outpatient medical care, services, or treatment for such disability; is likely to be discharged or released from such service for such disability; and the pursuit of a course of education by such individual's spouse or child for which benefits under 38 U.S.C. chapter 35 are sought occurred after December 22, 2006. See 38 C.F.R. § 3.807(a). In this case, the Dependents' Educational Assistance benefits are based on a permanent total service-connected disability. As the grant of a 100 percent evaluation for PTSD provides this level of disability, the effective date of the Veteran's eligibility for Dependents' Educational Assistance benefits is contingent on the effective date for the 100 percent evaluation for PTSD. As explained above, the Board has denied entitlement to an effective date prior to April 29, 2020, for the 100 percent evaluation for PTSD. Thus, the effective date for Dependents' Educational Assistance eligibility can be no earlier than April 29, 2020, and an earlier effective date is denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). SHAUN S. SPERANZA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Parnell, Michael C. 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.