Citation Nr: 0427337 Decision Date: 10/01/04 Archive Date: 10/12/04 DOCKET NO. 02-15 806 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine THE ISSUES 1. Whether there was clear and unmistakable error (CUE) in a May 1994 rating action that denied an evaluation in excess of 30 percent for post-traumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than March 5, 2001 for a grant of a 70 percent rating for PTSD. 3. Entitlement to an effective date earlier than March 5, 2001 for a grant of a total rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Richard A. LaPointe, Attorney ATTORNEY FOR THE BOARD Joseph Michael Horrigan INTRODUCTION The veteran had active service from August 1952 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision by the RO, which, in pertinent part, granted a 70 percent rating for the veteran's PTSD, effective March 5, 2001, and also granted a TDIU, effective March 5, 2001. The Board remanded the veteran's EED claims in November 2003. In March 2004, the veteran's representative raised a claim of clear and unmistakable error in a May 1994 rating decision that denied entitlement to an evaluation in excess of 30 percent for PTSD. In a rating action of April 2004, the RO found no CUE in the May 1994 rating action. The veteran perfected an appeal as to that issue. The issues of CUE in the May 1994 rating action that denied an evaluation in excess of 30 percent for PTSD, and entitlement to an EED for the grant of a 70 percent rating for PTSD are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The veteran's claim for TDIU was received on March 5, 2001. It was not factually ascertainable that the veteran's PTSD rendered him unemployable prior to May 5, 2001. CONCLUSION OF LAW The criteria for an effective date prior to March 5, 2001, for the grant of TDIU have been not been met. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. §§ 3.400(o)(2), 4.16 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000, as amended, provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2004). It also requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103(a). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) found that a VCAA notice letter consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) (2003) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, at 120-1. The RO informed the veteran of who was responsible for obtaining what evidence, and of the evidence needed to substantiate his claim in a letter dated in December 2003. This letters, in conjunction with the September 2002 statement of the case and the February 2004 supplemental statement of the case informed the appellant of the evidence needed to substantiate his current claims for EED. The letter also informed the veteran who was responsible for obtaining what evidence. The VCAA notice letter told the appellant of his responsibility for submitting evidence, and thereby put him on notice to submit all such evidence in her possession. In Pelegrini the majority also held that the VCAA notice, must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. Id. 119-120. However, the Court's remedy was a remand so that the notice could be provided. Id., 122-124. The appellant essentially received that remedy when the RO provided notice in December 2003. VA has thereby met its obligation to notify the appellant of the evidence needed to substantiate his claims and of what evidence he was responsible for obtaining. See Charles v. Principi, 16 Vet. App. 370 (2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002). It does not appear from a review of the record that there is any evidence relevant to the issues of entitlement to EED currently on appeal but not yet associated with the claims folder. In this regard the Board's remand sought to obtain records from the Social Security Administration, and to ask the veteran whether there were any additional relevant records. The Social Security Administration subsequently responded that the veteran's folder had been destroyed, and no records were available. In addition the veteran earlier indicated that there were no relevant medical records, and did not respond to requests from the RO to report relevant treatment. Factual Background The veteran's only service connected disability is PTSD. The veteran's service personnel records show that he served in Korea from March 1953 to June 1954. He also served in Vietnam from October 1967 to October 1968, and from November 1971 to June 1972. He was awarded the Combat Infantryman Badge in connection with his service in Vietnam. On VA hospitalization in September 1983, it was reported that the veteran had also been hospitalized in 1981. At that time he had been drinking for 17 years, and drinking heavily for the past year to 15 months. The relevant diagnoses were alcohol intoxication and alcohol dependence. The veteran underwent VA hospitalization from May to August 1991. The discharge diagnoses were PTSD, and chronic alcoholism. It was reported that the veteran began drinking at the age of 16 with progressive worsening of his alcohol habit. At discharge, he was found to be employable. A statement from the Social Security Administration received in February 1992, shows that he was deemed disabled effective in May 1991. On VA examination in February 1992, the diagnosis was mild to moderate PTSD. In a March 1992 rating decision service connection was granted for PTSD, effective in September 1991. On VA examination in April 1994, it was reported that the veteran's last regular employment had been three years earlier. He again reported that he began drinking at age 16. This occurred while he was in the Army. The diagnoses were PTSD, alcohol abuse, and nicotine addiction. The global assessment of function score was 51 to 60. During the period from 1996 to 2001, VA clinical records reflect treatment for various conditions, including skin cancer, family conflicts, psychiatric symptoms, sobriety, genitourinary difficulties, and smoking cessation,. During December 1996 it was noted that the veteran was managing his PTSD well on his present medication. He was noted to be mildly to moderately depressed in January 1998. In early February 2001 he was said to be stable on present medications. It was noted that he stayed active plowing snow in the winter, and he had applied for a job driving a school bus. It was also noted that he tended a garden. In March 2001 the veteran's representative submitted a formal claim for TDIU. The claim was received on March 5, 2001. In the application the veteran reported that he had last worked full time in May 1991. He reported that he been "relieved of duties" after backing a "pay loader" off a flatbed trailer without placing ramps on the trailer. Thereby, causing all four tires on the "pay loader" to go flat. On VA psychiatric examination in May 2002 the veteran was noted to have concentration difficulties, a depressed mood, anhedonia, and frequent nightmares. His speech was rambling and recent memory was decreased. The diagnoses were PTSD, alcohol dependence in remission, and multiple medical problems. His global assessment of functioning was 40, which the examiner explained, meant he had major impairments of judging thinking and mood. Criteria Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2003). In the case of a claim for an increased rating, if an increase in disability occurred within one year prior to the date of claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A.§ 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12- 98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet App 511 (1997). The law provides that a total disability rating based on individual unemployability due to one or more service- connected disabilities may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of such service-connected disabilities. 38 C.F.R. 3.340, 3.341, 4.16. If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. The regulations provide that where the veteran has a single service-connected disability, that disability must be rated as 60 percent disabling or more before a total rating may be assigned. The regulations further provide that where, as here, the veteran has two or more disabilities, at least one disability shall be rated at 40 percent or more, and that sufficient additional disability bring the combined rating to 70 percent or more before a total rating may be assigned. 38 C.F.R. § 4.16(a). In determining whether there was an earlier claim the Board is required to determine all potential claims raised by the evidence, applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim for the benefit. Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). However, an "informal claim must identify the benefit sought." Id (citing 38 C.F.R. § 3.155(a) (2003)). The Federal Circuit has elaborated that VA, "has a duty to fully and sympathetically develop the veteran's claim to its optimum in order to determine if an informal claim had been raised. With respect to all pro se pleadings, ... VA [must] give a sympathetic reading to the veteran's filings by determining all potential claims raised by the evidence, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370 (2004); see also Moody v. Principi, 360 F.3d 1306 (2004). Analysis The veteran and his representative have made no specific arguments as to why the March 5, 2001 effective date is incorrect. As the foregoing makes clear, to determine the correct effective date for TDIU the Board must determine the date of claim and the date an increase was ascertainable. While there was no formal claim for TDIU prior to March 5, 2001, the Board must consider whether the treatment records or other evidence constitute informal claims for that benefit. See 38 C.,F.R. § 3.157(b) (2003). While there were earlier reports that the veteran was unemployed, none of the earlier evidence suggested that the unemployment was due to PTSD. In this regard, the opinions rendered between May 1991 and May 2001 were to the effect that the veteran's PTSD was not so severe as to cause unemployment. The 1992 VA examination described mild to moderate PTSD, and the 1994 VA examination provided a global assessment of function indicative of moderate disability. American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125, 4.130 (2003). The Social Security Administration decision does not constitute an informal claim under VA regulations. Since there was no evidence prior to March 2001, that PTSD caused unemployability, the Board does not find that the earlier records constituted informal claims for TDIU. The veteran's March 2001 claim for TDIU contains an implicit assertion that PTSD caused unemployability. However, there was no evidence that the disability had increased to the point of causing unemployability until the VA examination in May 2002. The Social Security record did not report the disabilities that served as the basis for its finding of disability. Moreover, it came on the heals of a VA hospital report showing that the veteran had been found employable after treatment. The veteran's statements and treatment records prior to March 2001, do not document, or suggest, that he was unemployable by reason of PTSD. The above evidence demonstrates that the veteran filed claims for an increased rating for PTSD and for a TDIU on March 5, 2001. It is also apparent that the first indications of both an increase in severity of this PTSD and an inability to obtain and sustain gainful employment dated from a VA examination conducted in May 2002. Prior to that date, the clinical evidence of record shows that the veteran's psychiatric symptoms were stable and that the veteran was capable of gainful employment during the year prior to the submission of his claims for an increased rating and a TDIU in March 2001. In view of the above, it is apparent that March 5, 2001, the date of receipt of the veteran's claims for an increased rating for PTSD and for a TDIU is the earliest appropriate effective date for assignment of these benefits. ORDER Entitlement to an effective date earlier than March 5, 2001 for a grant of TDIU is denied. REMAND The veteran has asserted that the RO committed CUE in its rating action Of May 1, 1994 that confirmed and continued a 30 percent rating for PTSD because it failed to considered evidence of VA treatment that was in the constructive possession of the RO, although not associated with the claims folder. CUE is a very specific and rare kind of error; it is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. To find CUE, the correct facts, as they were known at the time, must not have been before the adjudicator (a simple disagreement as to how the facts were weighed or evaluated will not suffice) or the law in effect at that time was incorrectly applied; the error must be undebatable and of a sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and the determination of CUE must be based on the record and law that existed at the time of the prior adjudication. Cook v. Principi, 258 F.3rd 1311 (Fed. Cir. 2001). The VA is deemed to have constructive knowledge of those records and, in this case, has actual knowledge of the existence of those records. As such, they are considered to be evidence that is of record at the time any decision is made and should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). See also, VAOPGCPREC 12-95, 60 Fed. Reg. 43,186 (1995) (". . . With respect to final agency of original jurisdiction (AOJ) decisions rendered on or after July 21, 1992, an [agency of original jurisdiction's] failure to consider records which were in VA's possession at the time of the decision, although not actually in the record before the AOJ, may constitute clear and unmistakable error if such failure affected the outcome of the claim. . . . "). The Board notes that in the July 2004 statement of the case regarding the veteran's claim of CUE, the Decision Review Officer determined that the subsequently obtained VA treatment records were not outcome determinative because they did not show that he met the criteria for a higher evaluation under VA's current criteria for rating mental disorders. 38 C.F.R. § 4.130 (2003). However, these criteria were not in effect at the time of the May 1994 rating action. The then applicable criteria were contained in 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). The RO must initially consider the impact of the old criteria, prior to a decision by the Board. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Since CUE is a means to obtain an earlier effective date for the 70 percent rating for PTSD, the Board will defer consideration of the effective date issue. In view of the above, the issue of whether there was CUE in a May 1994 rating action that denied an evaluation in excess of 30 percent for post-traumatic stress disorder is REMANDED for the following action. 1. The RO should re-adjudicate the issue of CUE in the May 1994 rating action that denied an evaluation in excess of 30 percent for PTSD with consideration of the scheduler criteria of 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). 2. If the determination remains adverse to the veteran he and his representative should be provided a supplemental statement of the case containing the appropriate laws and regulations, including the criteria of 38 C.F.R. § 4.132, Diagnostic Code 9411 (1994). The case should then be returned to this Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2