Citation NR: 9610843 Decision Date: 04/17/96 Archive Date: 04/25/96 DOCKET NO. 92-17 889 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas THE ISSUE 1. Entitlement to an effective date earlier than January 29, 1990, for an award of compensation for post-traumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than January 29, 1990, for an award and payment of compensation at 50 percent for epidermophytosis with guttate psoriasis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active military service from August 1968 to March 1970. This case was previously before the Board and remanded for additional development in September 1994. As a result of that remand, by rating action in October 1995, service connection was granted for guttate psoriasis, and the 30 percent evaluation for epidermophytosis was increased to 50 percent (epidermophytosis with guttate psoriasis), effective January 29, 1990. When the case was before the Board in September 1994, the issues included an increased rating for epidermophytosis. The 50 percent evaluation assigned for epidermophytosis with guttate psoriasis in October 1995 is the maximum schedular rating allowed for skin disorders. Therefore, the increased rating issue is no longer before the Board. Ab v. Brown, 6 Vet.App. 35 (1993). The veteran’s representative, in a March 1993 presentation, referred to 38 C.F.R. § 3.105(a), which concerns error in prior rating actions. The representative specifically argued that the appellants’ award of the Army Commendation Medal with “V” (Valor) Device had not been adequately considered. The Board finds this allegation is insufficient to raise a valid claim of clear and unmistakable error to reverse any prior adjudication. This is because he has not alleged the type of error of fact that would have manifestly resulted in a different outcome, since the fundamental problem in the case prior to the current reopened claim was the absence of competent medical evidence identifying a mental disorder that was linked to service. Fugo v. Brown, 6 Vet.App. 40, 44 (1993). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred in not finding that the evidence of record supports an effective date earlier than that currently assigned for his service- connected PTSD and skin disorder. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence does not support an effective date earlier than January 29, 1990 for an award and payment of compensation for PTSD, or an increased rating for epidermophytosis with guttate psoriasis. FINDINGS OF FACT 1. Service connection was denied for a nervous condition in 1972 and 1979. 2. The veteran failed to appear for an examination for service-connected epidermophytosis in July 1988. 3. Service connection was denied for PTSD, and a 10 percent evaluation for epidermophytosis was continued, by rating action in September 1988; the veteran was provided written notice of this determination and of his appellate right and he did not appeal the determination within one year of the date of notification. 4. The veteran filed a claim for an increased rating for epidermophytosis, received January 29, 1990, and service connection for PTSD, dated May 31, 1990. 5. Received June 6, 1990, were copies of private medical records showing diagnoses of anxiety reaction and depression for the veteran, beginning in 1972. 6. A VA clinical social worker diagnosed PTSD for the veteran in December 1990; there were private and VA diagnoses of PTSD for the veteran in February and March 1991, respectively. 7. By rating action May 8, 1991 service-connection was established for PTSD, rated 10 percent, and the 10 percent evaluation for epidermophytosis was increased to 30 percent, with both actions effective January 25, 1990; a May 31, 1991 rating action revised the effective dates to January 29, 1990, the dated of receipt of the reopened claim for epidermophytosis. 8. By rating action in May 1992, a 100 percent evaluation was assigned for PTSD, effective January 29, 1990. 9. An October 1995 rating action assigned a 50 percent evaluation for epidermophytosis with guttate psoriasis, the maximum schedular rating, effective January 29, 1990. CONCLUSIONS OF LAW 1. An effective date earlier than January 29, 1990, for an award of compensation for PTSD is not warranted. 38 U.S.C.A. §§ 5101(a), 5107(a), 5110(a) (West 1991); 38 C.F.R. §§ 3.151, 3.160(d)(e), 3.400 (1995). 2. An effective date earlier than January 29, 1990, for an award and payment of compensation at 50 percent for epidermophytosis with guttate psoriasis is not warranted. 38 U.S.C.A. §§ 5107(a), 5110 (West 1991); 38 C.F.R. §§ 3.160(e), 3.400(o)(2)(r), 4.118, Diagnostic Codes 7813, 7816, 7806 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION In general, 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 increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Compensation for PTSD, Effective Date The veteran asserts that the effective date for the grant of service-connection, and 100 percent evaluation, for PTSD should be March 8, 1978, when post-traumatic stress disorder was first diagnosed. In this regard, he has specifically cited a March 1978 report from J. Ludlow, Ph.D., a clinical psychologist. The Board points out that the March 1978 report of Dr. Ludlow does not reflect a diagnosis of PTSD. In this case, in 1972 and 1979, the VA denied service connection for a nervous condition. While the veteran’s Social Security disability award in April 1978 refers to a diagnosis of post traumatic depression, there was no competent medical diagnosis of post-traumatic stress disorder associated with the veteran’s military service at the time. Service connection was denied for PTSD in a September 1988 rating action. The veteran was notified of this decision and of his appellate rights, in writing, in October 1988. He did not appeal and that decision became final. The September 1988 denial of service connection for PTSD was a final disallowance. A specific claim must be filed in order for benefits to be paid under laws administered by the VA, 38 C.F.R. § 3.151. The May 1990 statement from the veteran specifically identified PTSD as a claim to be “reconsidered” by the VA. The veteran’s May 1990 claim for service connection for PTSD was an application to reopen his claim after a final disallowance of an earlier claim. 38 C.F.R. § 3.160(e). In passing, the Board notes that the veteran’s January 29, 1990, claim only referred to his skin disorder and malaria, and made no reference to a psychiatric disorder. Absent such a reference, it was not a claim to reopen service connection for PTSD. Received in June 1990 were private medical records from 1972 to 1982, showing diagnoses of anxiety and depression. There was a diagnosis of PTSD by a social worker in December 1990, and by physicians of post-traumatic stress disorder in February and March 1991. Received in August 1995 were private medical records showing diagnosis of post-traumatic depression in 1978. This disorder was not associated with the appellant’s period of service. As noted above, the effective date of an evaluation and award of compensation based on a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. Here, the veteran’s claim was dated May 31, 1990, and PTSD was actually diagnosed at a later date. On these facts, both the date of receipt of the claim and the date entitlement arose, in the sense of the existence of medical evidence showing a psychiatric disorder associated with service, were later than January 29, 1990. The RO chose to award an effective date of January 29, 1990. Since the issue developed for appellate review is entitlement to an effective date prior to January 29, 1990, the Board’s analysis will cease at this point. In regard to the March 1978 effective date requested by the veteran, the Board must consider the final denial of service connection for PTSD in 1988, apparently forgotten by the veteran, and start with his reopened claim in May 1990. An effective date earlier than January 29, 1990, for an award of compensation for PTSD is not legally justifiable. 38 U.S.C.A. §§ 5101 5110; 38 C.F.R. §§ 3.151, 3.160, 3.400. The award of a 100 percent evaluation for the PTSD was made effective the date of the grant of service-connection for the disorder, and therefore it is not necessary to discuss the effective dates of specific ratings separate from the effective date of the award of service connection. Increased Rating for Epidermophytosis, Effective Date The service-connected epidermophytosis with guttate psoriasis is rated as analogous to eczema. Eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant, warrants a 50 percent evaluation, which is maximum. 38 C.F.R. § 4.118, Diagnostic Codes 7813, 7816, 7806. An increase in disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The veteran contended in May 1991 that the increased evaluation for his skin disorder should be retroactive 10 years to when he received treatment at a VA medical center. He also contended in his notice of disagreement that the effective date should be in 1987 when he reopened his claim for increased benefits. In hearing testimony in August 1991 he reported trying to keep his claim for an increased rating for his skin disorder open through the years because of the nature and severity of the problem, Transcript, page 5. The veteran did file a claim for an increased rating for his service-connected skin disorder in April 1987, that was denied by rating action in July 1987, and again requested an increased evaluation for his skin disorder in January 1988, but he failed to report for an examination in July 1988, and by rating action in September 1988 the 10 percent evaluation for epidermophytosis was confirmed and continued. The veteran was notified of the this determination in October 1988 but did not appeal within the appropriate time limit, and that decision became final. The veteran had the opportunity in 1988 to object to the evaluation but for whatever reason chose not to do so. The 1988 decision represents a final disallowance of a claim, and his claim for increased disability benefits, received January 29, 1990, represents a new claim. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service- connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen: A report of examination or hospitalization by department of Veterans Affairs or Uniform Services; evidence from a private physician or layman; evidence from State or other institutions. 38 C.F.R. § 3.157(a)(b)(1)(2)(3) (1995). The Board has reviewed VA clinical records, as well as other records from 1988 to 1990 to determine if there are any entries which would be acceptable as an informal claim to reopen a claim for increased disability benefits for the veteran’s service-connected skin disorder. The private hospital reports from January 1988 and August 1989, received in April 1990, do not deal with the veteran’s skin disorder. VA outpatient clinic records from 1974 to 1991 show treatment for a salivary gland infection and rash on the right thigh in October 1988; a request for a prescription for treatment of his skin disorder in February 1989; and a one centimeter by one centimeter carbuncle on the right thigh in December 1989. The aforementioned records do not contain any detailed evaluations of the service-connected skin disorder, and thus they do not constitute evidence factually establishing the existence of increased disability. The veteran underwent a VA dermatology examination in March 1991, and the diagnosis was tinea pedis with onychomycosis, considerably symptomatic. A VA outpatient clinic record dated in October 1991 shows a diagnosis of psoriasis vulgaris involving the veteran’s feet, extremities and trunk. A VA dermatology examination in November 1994 resulted in a diagnosis of guttate psoriasis, involving the veteran’s trunk and legs. By rating action in October 1995, service connection was established for guttate psoriasis, and the epidermophytosis with guttate psoriasis was evaluated at 50 percent, effective the date of the veteran’s reopened claim in January 1990. The record in this case contains no medical records, prior to the evaluation of the psoriasis in 1991 and 1994, which would support an increased rating for the service-connected skin disorder. There are no supporting records from September 1988 to January 1990 which could be construed as showing increased disability. The RO clearly exercised liberal rating judgment in extending to the veteran the January 29, 1990 effective date; an earlier effective date is not legally justifiable. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.400, 4.118, Diagnostic Codes 7813, 7816, 7806. ORDER An effective date earlier than January 29, 1990, for an award of compensation for PTSD is denied. An effective date earlier than January 29, 1990, for an increased evaluation for epidermophytosis with guttate psoriasis is denied. RICHARD B. FRANK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -