Citation Nr: 1035427 Decision Date: 09/20/10 Archive Date: 09/28/10 DOCKET NO. 09-18 573 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an effective date earlier than November 6, 2006, for grant of service connection for post-traumatic stress disorder. 2. Entitlement to an effective date earlier than November 6, 2006, for grant of basic eligibility for Dependents Educational Assistance. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from February 1986 to August 1991. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2008-issued rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, that granted service connection for post-traumatic stress disorder (PTSD) and assigned a 70 percent schedular rating and granted basic eligibility for Dependents Educational Assistance. Both grants were made effective from November 7, 2006. The Veteran has appealed for earlier effective dates for both benefits. The November 2008 rating decision also indicates that the grant of PTSD compensation at the 70 percent level results in a combined 100 percent schedular rating, which has mooted a claim for a total disability rating based on individual unemployability (hereinafter: TDIU). In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court rejected VA's rationale for concluding that a 100 percent schedular rating subsumes a TDIU rating. The Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). Thus, it might benefit the Veteran to obtain a TDIU rating, even where a 100 percent schedular rating has also been granted. Because of this holding, VA's General Counsel has taken action to withdraw VA O.G.C. Prec. Op. No. 6-99, which is contrary to the holding of Bradley. Moreover, it has not yet been decided whether there remains a portion of the appeal period wherein a 100 percent schedular rating has not been assigned, but where TDIU rating remains available. Thus, the claim for TDIU for any portion of the appeal period is referred for appropriate action. A March 2004 RO rating decision grants an increased rating for craniotomy with bone flap, but does not address a separate rating for the postoperative cranial scar. In August 2004, the Veteran requested a separate rating for that scar. The RO processed that request as an NOD to the March 2004 rating decision. In August 2005, the RO issued an SOC addressing a separate scar rating. The Veteran did not file a substantive appeal and the RO closed that appeal. The Board therefore lacks jurisdiction to address this claim. In February 2010, the Veteran submitted several CUE claims. These have not been developed and are referred for appropriate action. Entitlement to an effective date earlier than November 6, 2006, for grant of basic eligibility for Dependents Educational Assistance is 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 1. The RO received a claim for service connection for PTSD or other psychiatric disability on January 5, 2000. 2. In an August 2001 rating decision, the RO denied service connection for PTSD. 3. The Veteran timely appealed the August 2001 rating decision, but in March 2004, prior to a Board decision on the matter, he withdrew his appeal. 4. The Veteran has not asserted CUE in the final August 2001 rating decision. 5. On February 16, 2005, the RO received an application to reopen the claim for service connection for PTSD. CONCLUSIONS OF LAW The criteria for an effective date of February 16, 2005, for service connection for PTSD are met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.104, 3.105, 3.151, 3.155, 3.157, 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Notice was provided in December 2006, prior to the appealed decision. The claimant challenges the effective date assigned following the grant of service connection. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA out-patient treatment reports and VA examination reports. The claimant has not identified and the record does not otherwise indicate that there is any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Earlier Effective Date The Veteran seeks an effective date earlier than November 7, 2006, for service connection for PTSD. In November 1991, shortly after his discharge from active military service, the Veteran submitted an original service connection claim for various disorders. In that claim, he did not ask for service connection for PTSD or other acquired psychiatric disorder. Rather, he sought service connection for residuals of a brain tumor and headaches and for a back condition. In May 1992, the RO granted service connection for the brain tumor and headaches and assigned a 40 percent combined rating effective the day after separation from active military service. The RO received the Veteran's claim for service connection for depression and PTSD on January 5, 2000. In June 2001, the RO obtained VA hospitalization and out-patient treatment reports. Among these is a November 2000 VA hospitalization report that notes that the Veteran was admitted because of an angry outburst, anxiety, and panic. The Axis I diagnosis was adjustment disorder with depressed mood and rule out PTSD due to childhood sexual abuse aggravated by an arrest in the military. Also obtained was another November 2000-dated VA hospital report that contains a final diagnosis of PTSD. This report does not mention any specific stressor, which renders the report unclear as to the etiology of PTSD. A March 2001 VA PTSD compensation examination report contains Axis I diagnoses of depression associated with character pathology; and, malingering, in that order. In pertinent part of an August 2001 rating decision, the RO denied service connection for PTSD, depression, and alcoholism on the basis that no medical doctor had found PTSD, that depression was not linked to active military service, and that alcoholism was the result of willful misconduct. The Veteran submitted an NOD to that decision in August 2001. The RO issued a statement of the case (hereinafter: SOC) in March 2003. The Veteran submitted a VA Form 9 or 1-9, Appeal to the Board of Veterans' Appeals, in May 2003. In March 2004, the RO issued a rating decision that granted an increased rating for right craniotomy with bone flap. Subsequently, in March 2004, the Veteran sent in a VA Form 21- 4138, Statement In Support Of Claim, in which he requested that "No further action" be taken regarding a higher rating for brain tumor residuals, service connection for PTSD, or for entitlement to TDIU. He also indicated satisfaction with respect to claimed CUE in an earlier denial of a higher rating for residuals of craniotomy with bone flap. In August 2004, the Veteran requested that VA "formally drop all my current appeals." He then requested a separate rating for a scar of the forehead. The RO closed all prior appeals, but processed the request for a scar rating as an NOD to the March 2004 rating decision that did not assign a separate scar rating. In September 2004, the Veteran submitted new claims and assertions "to facilitate my appeals." He requested that VA benefits be granted retroactively to 1991. He did not mention PTSD or other psychiatric disability. In response to a January 2005 VA notice letter concerning his appeal for a separate scar rating, in February 2005, the Veteran asserted that claims for service connection for PTSD, for headaches, and for back pain remained on appeal. In June 2005, the RO sent a notice letter to the Veteran informing him that his recently received claim for service connection for PTSD was being developed. In November 2006, the Veteran requested service connection for PTSD and submitted new evidence. In an April 2007 rating decision, the RO again denied service connection for PTSD. The Veteran submitted an NOD in January 2008 and asserted that the PTSD claim had been pending since January 2000. In January 2008, the Veteran submitted a new claim for TDIU. In a November 2008-issued rating decision, the RO granted service connection for PTSD and assigned a 70 percent rating effective from November 7, 2006. The basis for the effective date of November 7, 2006, is the date of receipt of a new claim for PTSD. In March 2009, the Veteran asserted CUE in the November 2008- issued rating decision. He also asserted that he had timely appealed a March 2004 rating decision that denied service connection for PTSD. The effective date of service connection will be the later of the date of receipt of claim or the date entitlement arose if the claim is received more than one year after the Veteran's discharge from service. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. If based on receipt of new and material evidence, other than service department records, received after the final disallowance, the effective date will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q), (r) (2009). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2009). The first question for resolution is: When did the Veteran claim service connection for PTSD or other acquired psychiatric disorder? From the facts above, it is clear that he submitted the first of such claims on January 5, 2000. That claim was denied in August 2001. The second question is: Did the August 2001 rating decision become final? The Veteran timely submitted an NOD to the August 2001 rating decision and in March 2003, the RO issued an SOC. The SOC cover letter informed the Veteran that he had 60 days to file a substantive appeal. In May 2003, the RO received a timely substantive appeal. Thus, the August 2001 rating decision was timely appealed. In March and August 2004, however, he submitted written withdrawals of his appeals. According to 38 C.F.R. § 20.204 (c), a written withdrawal is deemed to withdraw the NOD and the substantive appeal. Any subsequent new filing to reinstate the appeal must be timely filed. The Veteran later attempted to reinstate the appeals; however, such attempt was untimely. On February 16, 2005, the RO received the Veteran's request to reinstate his appeal for service connection for PTSD. Because the time limits to appeal the case had expired in May 2003 (60 days from issuance of the March 2003 SOC), the February 2005 filing is untimely cannot serve to reinstate the prior appeal. Thus, the August 2001 rating decision became final. No revision to the August 2001 final decision may be made absent CUE or a finding of non-finality. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.400(k); Best v Brown, 10 Vet. App. 322 (1997) 38 C.F.R. § 3.105. The Veteran has not asserted that the August 2001 rating decision is based on CUE. His assertion that the August 2001 decision lacks finality because of his reinstated appeal must fail, as his attempt to reinstate the appeal was itself untimely. 38 C.F.R. § 20.204 (c). While the Veteran's February 2005 attempt to reinstate the withdrawn appeal must fail, it can serve as an application to reopen the claim for service connection for PTSD. This is especially true in the case because in June 2005, the RO wrote the Veteran and informed him that his new PTSD claim was under consideration. February 16, 2005, therefore is clearly the date of the RO's receipt of an informal application to reopen a claim for service connection for PTSD. February 16, 2005, therefore will be the correct effective date for a grant of benefits unless an earlier-dated treatment report meeting requirements set forth below is found. Under 38 C.F.R. § 3.157, a treatment report dated prior to the actual claim may suffice as a claim to reopen or a claim for an increase. The provision applies to Veterans who have had a formal claim for compensation allowed (38 C.F.R. § 3.157 (b)) and the report must relate to a disability which may establish entitlement. § 3.157 (a). In this case, formal claims for compensation had been allowed in prior years. Under 38 C.F.R. § 3.157 (b), a claim specifying the benefit sought must actually be received within one year from the date of the examination, treatment, or hospital admission report. Because the new claim was actually received on February 16, 2005, the next inquiry is whether there is a related examination, hospital, or other treatment report dated within one-year prior to February 16, 2005. Harper v. Brown, 10 Vet. App. 125, 126. Review of the claims files reveals no treatment report that is dated within one-year prior to February 16, 2005, nor has the Veteran alleged that any such document meets these requirements. Thus, February 16, 2005, remains as the earliest date of a new claim for PTSD. With respect to the Veteran's March 2009 assertion of CUE in the appealed November 2008-issued rating decision, it is understood that in making this CUE claim, the Veteran simply seeks an earlier effective date for PTSD. However, this CUE claim must fail because the November 2008-issued rating decision was appealed to the Board and has not become final. Case law clearly holds that CUE claims are reserved for final claims only. Where the decision has not become final, no CUE claim can be entertained. Link v. West, 12 Vet. App. 39, 44 (1998) (holding that CUE claim does not exist, as matter of law, where there is no prior final RO decision). Thus, the claim of CUE in the November 2008 decision need not be addressed further. The Veteran has also asserted that he had timely appealed a March 2004 rating decision that denied service connection for PTSD. Review of the March 2004-issued rating decision reveals that service connection for PTSD was not addressed. Neither does his NOD of August 2004 mention PTSD. After considering all the evidence of record, including the testimony, the Board finds that the evidence favors an earlier effective date of February 16, 2005, for grant of service connection for PTSD. ORDER An earlier effective date of February 16, 2005, for service connection for PTSD is granted. REMAND Because an earlier effective date for service connection for PTSD is granted above, the effective date for basic eligibility for Dependents Educational Assistance must be re-adjudicated. Accordingly, the case is REMANDED for the following action: The AMC should re-adjudicate the claim for an earlier effective date for basic eligibility for Dependents Educational Assistance. Following re-adjudication, if the benefit sought is not granted, the AMC should issue an appropriate supplemental statement of the case (SSOC). The Veteran should be afforded an opportunity to respond to the SSOC before the claims folders are returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ F JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs