Citation Nr: 1040172 Decision Date: 10/26/10 Archive Date: 11/01/10 DOCKET NO. 07-37 853A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a schedular rating over 50 percent for PTSD from January 8, 1998 through May 1, 2006. 2. Entitlement to an effective date prior to May 2, 2006 for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Joseph Moore, Attorney-at-Law ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from March 1969 to December 1971. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran, through his attorney, perfected the issues of a higher initial evaluation and earlier effective date for the grant of service connection for PTSD. In June 2009, the Board denied the claim of an effective date earlier than January 8, 1998, for the grant of service connection for PTSD and remanded the issue of an initial disability evaluation in excess of 50 percent for PTSD. In a January 2010 rating decision, the RO assigned a 70 percent disability evaluation for PTSD, which is the sole service-connected disability, and a total rating based on individual unemployability (TDIU) from September 5, 2008, and continued the 50 percent disability evaluation prior to that date. In a February 2010 rating decision, the RO assigned an effective date of May 2, 2006, for both the 70 percent rating for PTSD and TDIU. In March 2010, the Veteran's attorney indicated that they were satisfied with the schedular 70 percent disability evaluation for PTSD from May 2, 2006 but sought an effective date of January 8, 1998 for the assignment of the TDIU rating. Thus, the attorney framed the issues on appeal as (1) entitlement to a schedular rating over 50 percent for PTSD from January 8, 1998 through May 1, 2006, and (2) entitlement to an effective date prior to May 2, 2006 for individual unemployability. The Veteran's attorney also indicated that the appropriate action with regard to the earlier effective date for the TDIU would be the issuance of a statement of the case. The RO issued the statement of the case in March 2010 concerning the earlier effective date for TDIU. A response was not associated with the Veteran's claims folder either before it was returned to the Board in late April 2010 or to date; however, the Board's VACOLS system contains information that the appeal as to this issue was received on April 6, 2010. The Board also notes that, in Percy v. Shinseki, 23 Vet. App. 37 (2009), the United States Court of Appeals for Veterans Claims (Court) specifically held that the 60-day period in which to file a substantive appeal is not jurisdictional, and thus VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Consequently, the Board has listed the issues as such on the title page of this decision even though the appeal received in April 2010 is not currently contained in the Veteran's claims folder. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In its June 2009 remand, the Board noted various pieces of evidence, including the report of a May 2008 VA examination containing Axis I diagnoses of chronic PTSD; alcohol dependence; cannabis abuse; depressive disorder, NOS, and cocaine dependence, in sustained full remission, and a Global Assessment of Functioning (GAF) score of 55, in which the examiner stated that the Veteran's PTSD symptoms did not result in total occupational and social impairment and that he had moderate impairment in his psychosocial functioning as a result of his mental health symptoms. The Board also noted that the Veteran's attorney later submitted a September 2008 report from K. Platoni, Psy.D., containing the opinion that there was little doubt that the Veteran had remained severely impaired for decades, resulting in unemployability since 1998, and that he was permanently and totally disabled from productive work. The Board further noted a March 2009 letter from a social worker at the Martinsburg, West Virginia VA PTSD Center, as well as a May 2009 treatment record indicating that the Veteran had completed the PTSD Domiciliary Program with a GAF score of 43 being assigned at program completion; the Board observed that this score reflected his functioning in a structured supportive environment and was not necessarily indicative or predictive of functioning in the community. Consequently, the Board directed that the Veteran be examined to determine the nature and extent of severity of his PTSD. The examiner was to note that the claims folder had been reviewed, to comment on the September 2008 report from K. Platoni, to assign a numerical code under the GAF scale in the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) only as it related to the Veteran's service-connected PTSD and give an explanation of the GAF score provided, and to indicate whether the Veteran's service-connected PTSD precluded employment and the length of time it had precluded employment. The examiner was to provide rationale for each opinion. The report of the September 2009 VA examination contained information that the claims folder and the medical records were reviewed. The examiner rendered a diagnosis of PTSD, assigned a GAF score of 50, and stated that it was at least as likely as not that the Veteran's service-connected PTSD had precluded employment for the past 9 years, and provided an explanation for that opinion. The RO requested that the VA examiner clarify the previous opinion, and in a January 2010 addendum report, the examiner indicated that the evidence reviewed included VA records, the report of Dr. Platoni, and the results of VA examinations performed in January 2005, July 2006, and May 2008; that the Veteran currently met the diagnostic criteria for chronic PTSD and polysubstance dependence, sustained, full remission; that it was at least as likely as not that the Veteran's PTSD had precluded employment and that it was at least as likely as not that he had been unemployable since 2006, when he was hospitalized for suicidal ideation and subsequently hospitalized twice (2008 and 2009) for PTSD. The Board notes that the September 2009 examiner's original opinion and the January 2010 addendum report cite two different dates as to when the Veteran's PTSD precluded him from obtaining employment, the former containing the opinion that the Veteran's PTSD precluded him from employment for the past nine years and the latter containing the opinion that it was at least as likely as not that he had been unemployable since 2006. In the June 2009 remand, the Board requested the examiner to comment specifically on the September 2008 report by Dr. Platoni. The examiner did not reference this report when rendering her September 2009 opinion. In her January 2010 addendum report, she noted that she had reviewed the report but did not comment on the report as was required in the remand. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that compliance with remand instructions is neither optional nor discretionary. The Court further held that where the remand orders of the Board were not complied with, the Board erred as a matter of law when it failed to ensure compliance. To clear up any discrepancy in the two opinions and to comply with the orders of the prior remand, the matter should be returned to the examiner who prepared the September 2009 examination report and the January 2010 addendum report, so that she can explain what caused the discrepancy in the dates given in the September 2009 and January 2010 reports for when the Veteran's PTSD precluded employment. The examiner should also specifically comment on the September 2008 report from Dr. Platoni when providing any additional opinion. Accordingly, the case is REMANDED for the following action: 1. Return the claims folder to the examiner who performed the September 2009 VA examination. Following a review of the claims folder, the examiner is requested to clarify the date when unemployability caused by the service-connected PTSD began. If the examiner continues in her belief that PTSD was precluded from 2006, she is requested to indicate what specific evidence caused her to change to the date of unemployability due to PTSD from 2000 (that is, "the past nine years") to 2006. She is also requested to comment on the September 2008 report from Dr. Platoni containing the opinion that the Veteran's PTSD made him unemployable since 1998. The examiner is to cite specific reasons and to provide detailed rationale as to each opinion rendered and is also to comment on why Dr. Platoni's opinion is not supported by the evidence of record if such is the case. If the September 2009 VA examiner is not available, forward the claims folder to another VA psychiatric examiner. Following a review of the claims folder, the examiner is requested to answer the following question: Did the Veteran's service- connected PTSD preclude employment prior to May 2, 2006? If so, for what length of time did PTSD preclude employment? The examiner is to comment on the September 2008 report from Dr Platoni. The examiner is to also cite specific references and to provide complete detailed rationale when providing the above opinion. 2. To help avoid future remand, the RO must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any other development deemed appropriate, the RO should readjudicate the remaining issue on appeal. If the benefit sought is not granted, the Veteran's attorney should be furnished with a supplemental statement of the case containing all pertinent laws and regulations and afforded an opportunity to respond before the record is returned to the Board for future review. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).