POSTTRAUMATIC STRESS DISORDER (PTSD)

J.L. BURROUGHS · 2023 · Case ID: A23004070

GRANTED

Summary

The veteran, who served from February 1964 to January 1966, appeals the denial of an initial 100 percent rating for PTSD and the effective date for TDIU and DEA benefits. The Board found that the veteran's PTSD symptoms, while previously rated at 50 percent, more nearly approximated total occupational and social impairment throughout the initial rating period on appeal. This finding was based on a detailed private psychologist's report that cited extensive evidence of record and described severe, persistent, and incapacitating symptoms since 1983, leading to complete social and industrial inadaptability and an inability to obtain or retain employment. The Board resolved doubt in the veteran's favor, granting a 100 percent rating for PTSD. Consequently, the claim for TDIU was dismissed as moot, as the veteran was already receiving a 100 percent rating for PTSD. The Board also granted entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s), finding the criteria met due to the 100 percent PTSD rating and other disabilities independently rated at 60 percent or more. Finally, the Board granted an earlier effective date of December 27, 1983, for Dependents Educational Assistance (DEA) benefits, aligning it with the established effective date for the total disability rating.

Rationale

Resolving doubt in Veteran's favor; Symptoms more nearly approximate total occupational and social impairment; Private psychologist report highly probative

Special Benefit

TDIU; SMC

Docket No.

221109-295872

Full Decision Text

Citation Nr: A23004070
Decision Date: 02/28/23 Archive Date: 02/28/23

DOCKET NO. 221109-295872
DATE: February 28, 2023

ORDER

Entitlement to an initial 100 percent rating for posttraumatic stress disorder (PTSD) is granted.

Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities is dismissed as moot.

Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), is granted.

An effective date of December 27, 1983, for the grant of entitlement to Dependents Educational Assistance (DEA) benefits is granted.

FINDINGS OF FACT

1. Resolving any reasonable doubt in the Veteran's favor, symptoms of the service-connected PTSD resulted in total occupational and social impairment throughout the initial rating period on appeal.

2. As a 100 percent schedular disability rating is assigned for service-connected PTSD, and since the evidence does not support entitlement to a TDIU due other service-connected disabilities, there remain no questions of law or fact to be decided regarding TDIU throughout the initial rating period on appeal.

3. During the pendency of the appeal, the Veteran's PTSD is independently rated as 100 percent disabling, and his other service-connected disabilities are independently rated as 60 percent or more.

4. Given the Board's decision herein, granting 100 percent rating for PTSD, effective December 27, 1983, the Veteran is eligible for DEA under 38 U.S.C. Chapter 35, effective this date.

CONCLUSIONS OF LAW

1. For the entire initial rating period on appeal, the criteria for disability rating of 100 percent for PTSD are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411.

2. Entitlement to a TDIU is dismissed as moot. 38 U.S.C. §§ 7104, 7105(d)(5); 38 C.F.R. § 20.101.

3. The criteria for entitlement to a special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) are met. 38 U.S.C. § 1114 (s); 5107; 38 C.F.R. § 3.102, 3.350.

4. Beginning December 27, 1983, the criteria for eligibility to DEA under 38 U.S.C. Chapter 35 are met. 38 U.S.C. §§ 3500, 3501, 5110; 5107; 38 C.F.R. §§ 3.102, 3.400, 3.807.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 1964 to January 1966.

Relevant Procedural History

In a June 2018 decision, the Board granted an earlier effective date for an acquired psychiatric disorder, effective December 27, 1983.

An August 2018 rating decision implemented the Board's grant effective December 27, 1983 and granted entitlement to DEA benefits effective March 9, 2011 (the date entitlement to a TDIU was granted).

In October 2018, the Board remanded the issue of entitlement to an effective date earlier than March 9, 2011 for the award of a TDIU.

In an April 2020 rating decision, the RO again "implemented" the Board grant of an effective date of December 27, 1983 and assigned an initial 30 percent rating for the acquired psychiatric disorder.

In August 2020, the Veteran submitted a VA Form 20-0995 Supplemental Claim Application disagreeing with the assigned disability rating.

An October 2020 rating decision denied an initial rating higher than 30 percent.

In the interim, in December 2020, the Board remanded the issue of entitlement to an earlier effective date for TDIU for referral for extraschedular consideration.

In a January 2021 rating decision, the RO granted an earlier effective date of March 17, 2010, for the award of TDIU, and also granted an earlier effective date for DEA benefits effective the same date. A supplemental statement of the case regarding the effective date of TDIU was issue in January 2021, and the Veteran submitted a timely VA Form 10182 Notice of Disagreement in February 2021.

In September 2021, the Board remanded the issues of an initial rating higher than
30 percent.

In the interim, in December 2020, the Board remanded the issue of entitlement to an earlier effective date for TDIU for referral for extraschedular consideration.

In September 2021, the Board remanded the issues of an initial rating higher than 30 percent for acquired psychiatric disorder, and earlier effective date for TDIU and DEA benefits for further development.

Thereafter, in a January 2022 rating decision, the RO increased the disability rating for the acquired psychiatric disorder, now diagnosed as PTSD, to 50 percent, effective December 27, 1983. The decision also denied entitlement to an effective date prior to March 17, 2010, for the award of TDIU and DEA benefits.

In a November 2022, VA Form 10182 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 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his attorney with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303.

Initial Rating for PTSD

The Veteran's PTSD is rated as 50 percent disabling for the entire initial rating period on appeal.

The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (General Rating Formula) for Mental Disorders. See 38 C.F.R. § 4.130.

In this case, higher ratings include a 70 percent rating, which is warranted if the evidence establishes 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); and/or inability to establish and maintain effective relationships. Id.

A 100 percent rating (total occupational and social impairment) is warranted 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.

When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA's general Rating Formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a
formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA's general Rating Formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous.

When it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998).

In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale, and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. The increased rating claim for the acquired psychiatric disorder was pending prior to August 4, 2014 and this specific appeal was certified to the Board after August 2014, and as such, both the DSM-IV and DSM-V apply. Nevertheless, because of the Court's emphatic pronouncement in Golden that the GAF scores are methodologically flawed and are particularly unreliable as applied to psychiatric disorders, in this decision, the Board will place no reliance on GAF scores for rating this Veteran's psychiatric disorder.

Rating Analysis

The Veteran asserts that his PTSD resulted in total occupational and social impairment for the entire initial rating period on appeal.

Here, the Board granted an effective date of December 27, 1983, for the grant of service connection for PTSD. The RO assigned a 50 percent rating based on a November 2021 examination report. However, this examination was not retroactive, and failed to discuss decades of psychiatric symptoms. Furthermore, while the examiner described social impairment that resulted in no relationships other than with his spouse, and occupational impairment of lack of ability to work since the 1970s, the examiner concluded that the PTSD resulted in only occupational and social impairment with reduced reliability and productivity. Similarly, a 2012 examiner also noted that the Veteran lived alone and had no significant interpersonal relationships yet concluded that the psychiatric disorder was insignificant. Contrary to these examination reports, the Veteran submitted a detailed November 2022 report authored by a private psychologist. This report was detailed, cited to evidence of record, and was based on a lengthy interview with the Veteran.

The private psychologist, Dr. Morgan, interviewed the Veteran and provided an extensive overview of symptoms of PTSD since 1983. The psychologist cited to specific evidence of record and portions of her interview with the Veteran. The psychologist concluded that since 1983, symptoms of the Veteran's PTSD were severe and caused him active psychotic manifestations of such extent, severity, depth, persistence, and bizarreness as to produce complete social and industrial inadaptability. She added that throughout the pendency of the claim, the Veteran's PTSD prevented employment due to totally incapacitating symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities, as well as symptoms of fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior, such that he was demonstrably unable to obtain or retain employment.

Based on the foregoing, the Board resolves all doubt in the Veteran's favor to find that his symptoms more nearly approximate total occupational and social impairment. After a careful review of the evidence, both lay and medical, the Board finds that the evidence is conflicting as to the level of severity of the Veteran's PTSD. Nevertheless, given that the available VA examination only addressed present symptoms at the time of the examination and did not address any prior evidence of record, the evidence is at least in approximate balance as to whether the Veteran experienced symptoms, which more nearly approximate a total occupational and social impairment. Although some of the medical evidence describes perhaps a "milder" impairment due to the Veteran's PTSD, the Board finds the November 2022 report of high prob
foregoing, the Board resolves all doubt in the Veteran's favor to find that his symptoms more nearly approximate total occupational and social impairment. After a careful review of the evidence, both lay and medical, the Board finds that the evidence is conflicting as to the level of severity of the Veteran's PTSD. Nevertheless, given that the available VA examination only addressed present symptoms at the time of the examination and did not address any prior evidence of record, the evidence is at least in approximate balance as to whether the Veteran experienced symptoms, which more nearly approximate a total occupational and social impairment. Although some of the medical evidence describes perhaps a "milder" impairment due to the Veteran's PTSD, the Board finds the November 2022 report of high probative value to support that his symptoms more nearly approximate a total occupational and social impairment. Lastly, the Board notes that the evidence shows that the Veteran was unable to hold any gainful employment for the entire period on appeal directly as a result of his service-connected PTSD, which supports that PTSD resulted also in total occupational impairment.

TDIU and SMC

Based on the Board's decision herein, the Veteran is in receipt of a 100 percent schedular criteria for PTSD for the entire initial rating period on appeal. The Board recognizes that the Court has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293.

Here, a TDIU, if granted, would be based on the Veteran's service-connected PTSD alone, for which he is receiving a 100 percent schedular disability rating for the entire initial period on appeal, based on the Board's decision herein. In addition, while some earlier evidence suggested that the Veteran's seizure disorder prevented employment, the Veteran does not assert, and the evidence as a whole does not show that his other service-connected disabilities prevent him from obtaining any gainful employment. Specifically, the Veteran's attorney argued that either 100 percent rating for PTSD or entitlement to a TDIU due to PTSD is warranted.

Nevertheless, in light of the Board's decision herein, the Veteran is now in receipt of a 100 percent for the entire period on appeal and his other disabilities are independently ratable at 60 percent or more during later periods. Accordingly, the Board finds that based on the decision herein, the criteria for SMC under 38 U.S.C. § 1114(s) have been met.

Earlier Effective Date for DEA Benefits

Regarding the Veteran's claim for an earlier effective date for DEA benefits pursuant to 38 U.S.C. Chapter 35, the Board finds that an earlier effective date is warranted.

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. § 3501 (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 (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). Permanence of 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). 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 on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501 (a)(7).

As the only method of eligibility for Chapter 35 benefits which is relevant to the Veteran is through having a permanent total service-connected disability, the effective date for Dependents' Educational Assistance benefits is directly predicated on the effective date from which VA considered that the Veteran's permanent and total disability commenced for purposes of VA benefits. See 38 C.F.R. § 21.3021 (a)(iii), (p), (r). In light of the Board's current finding that the Veteran's service-connected PTSD resulted in total occupational and social impairment beginning December 27, 1983, the same effective for establishing eligibility for Chapter 35 benefits is also warranted. See 38 C.F.R. § 3.400 (a).

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Finally, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

J.L. BURROUGHS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Yaffe, 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.

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