Citation Nr: 0809721 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 05-39 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an effective date earlier than February 14, 2005, for an increased evaluation to 70 percent for post- traumatic stress disorder (PTSD). 2. Entitlement to an effective date prior to February 14, 2005, for the grant of entitlement to a total disability rating based upon individual unemployability due to service- connected disabilities (TDIU). ATTORNEY FOR THE BOARD D. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from February 1970 to March 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 decision rendered by the Winston- Salem, North Carolina Regional Office (RO) of the Department of Veterans Affairs (VA), which granted a claim for an increased disability rating for PTSD (from 50 percent to 70 percent) and for entitlement to TDIU. The effective date assigned for both issues was February 14, 2005. The veteran disagrees with the effective dates assigned. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims on appeal has been accomplished. 2. VA received the veteran's claims for an increased rating for PTSD and entitlement to TDIU on February 14, 2005. 3. There is no evidence demonstrating a factually ascertainable increase in the veteran's service-connected PTSD within one year prior to February 14, 2005. 4. The veteran did not meet the schedular criteria for TDIU benefits prior to February 14, 2005. 5. The evidence does not show that the veteran's service- connected PTSD precluded employment prior to February 14, 2005. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 14, 2005 for the grant of an increased rating for PTSD have not been met. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(1). 2. The criteria for an effective date earlier than February 14, 2005, for an award of TDIU have not been met. 38 U.S.C.A. § 5110 (West. 2002); 38 C.F.R. §§ 3.400, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. The notification must also include the request that the claimant provide any evidence in his possession that pertains to the claim. 38 C.F.R. § 3.159(b) (2007). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119- 120 (2004). Furthermore, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). VA complied with notification responsibilities in regards to the veteran's claim for an increased rating for PTSD and entitlement to total disability rating based on individual unemployability in correspondence sent to the veteran in March 2005 and April 2006. These letters notified the veteran of VA's responsibilities in obtaining information to assist the veteran in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claim, and requested that the veteran send in evidence in his possession that would support his claim. In particular, the April 2006 letter provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to the recent holding in the Dingess decision. VA has also made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002). The information and evidence associated with the claims file consist of the veteran's service medical records, VA medical treatment records, and the report of a VA examination. The veteran has not identified any outstanding records for VA to obtain that were relevant to the claim for earlier effective dates. For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify (each of the four content requirements) and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(b), 20.1102 (2007); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Factual Background & Analysis Earlier effective date for PTSD (rated as 70 percent disabling) Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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 date. The effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). An earlier effective date may be assigned when it is factually ascertainable that an increase in disability occurred and the claim for increase was received within one year from that date, but otherwise the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). Under VA laws and regulations, a specific claim in the form prescribed by VA, must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C.A. § 5101(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.151(a). VA regulations also provide that the terms 'claim' and 'application' mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2007). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). The Court has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. See Lalonde v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C.A. § 7104 (a); Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992). The Court has held, however, that the Board is not required to conjure up issues that were not raised by an appellant. See Brannon v. West, 12 Vet. App. 32 (1998). A report of examination or hospitalization that meets the requisite requirements will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability that may establish entitlement. The date of an outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. See 38 C.F.R. § 3.157. The veteran contends he is entitled to an effective date earlier than February 14, 2005, for the grant of an increased disability evaluation for his service-connected PTSD. The Board has considered his contentions, but finds however, that there is no legal basis for the award of an earlier effective date for the increased disability evaluation. Based upon a review of the cumulative evidence, the Board finds that an effective date earlier than February 14, 2005 for the increased rating for PTSD is not warranted. The veteran's claim for increase was received at the RO on February 14, 2005. A review of the record reveals no formal or informal communication in writing by, or on behalf of the veteran, requesting a determination of entitlement or evidencing a belief in entitlement to an increased disability rating, prior to this date. Based largely on medical findings reported at an April 2005 VA examination, the RO granted an increased disability evaluation of 70 percent for the veteran's service-connected PTSD. Since the claim for an increased rating was not received at the VA until February 14, 2005, this is the earliest possible effective date provided by law. The Board has also considered whether an increase was factually ascertainable during the year prior to receipt of the increased rating claim. Based upon the evidence, it is not shown that the veteran's PTSD symptoms increased to a level of severity sufficient for the assignment of a 70 percent schedular rating, during the period under review. A disability evaluation of 70 percent for PTSD requires evidence of suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). A VA outpatient treatment record dated in January 2004 reveals that the veteran's PTSD symptoms had improved with medication. While a clinical note dated in March 2004 shows the veteran had recently been fired from his job for failing to report for three weeks; this was not related to increased PTSD symptomatology. Rather, his three-week absence was due to low back pain secondary to a work-related injury in December 2003. The records reveals that the veteran stated to VA personnel that he had seen a private physician who certified that he was disabled due to this back injury. He also noted that he had recently begun receiving checks for short-term disability. The veteran denied symptoms of depression at that time. Additional VA records dated in September 2004 reveal that the veteran did not attend the Vet Center on a regular basis and was considered to be stable on his current complex psychotropic medication regimen. The veteran reported that he was sleeping better and was even working with his estranged wife towards reconciliation. His GAF score was 45 at that time. Another treatment record dated in December 2004 reveals that the veteran reported increased flashbacks and nightmares secondary to the escalation of hostilities in Iraq, as shown on the news and in news headlines. Upon evaluation, the veteran appeared to be tense and anxious. He was neatly dressed and groomed. His speech was short and directed; his eye contact was good; and he was alert and oriented times three. There were no flight of ideas, looseness of association, or overt psychotic symptoms. The veteran's mood was down and his affect was mildly constricted. There were no homicidal or suicidal ideations, ideas or plans. The GAF score was 40. In sum, in the one-year period prior to February 14, 2005, the evidence does not reflect any of the following: suicidal ideation; obsessional rituals; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. Absent a showing of these symptoms (indicative of severe PTSD warranting a 70 percent rating) prior to February 14, 2005, there is no basis for awarding an effective date for the veteran's increased rating prior to the date of his claim for increase. With regard to the GAF scores reported in the year from February 14, 2004 to February 14, 2005, the Board notes that the totality of the evidence compels a finding that an increased rating is not warranted on those scores alone. Significantly, the Board notes that VA treatment records dated between April 2000 and December 2003 show that the veteran consistently had a GAF score of 45. Thus, the GAF score of 45 noted in the September 2004 record does not reflect an increase in PTSD symptoms. Moreover, although a GAF of 40 was noted in a December 2004 record, the cumulative evidence does not support an increased rating. At worst, scores from 31-40 indicate some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. The Board notes, however, that the GAF score is but one piece of persuasive medical evidence, and an increased rating is not based upon GAF scores alone. Here, the absence of such symptoms as suicidal ideation, severe obsessional rituals, neglect of personal appearance and hygiene, or an inability to maintain a job due to these or other noted PTSD symptoms - is evidence that the veteran's GAF score of 40, in and of itself, does not support an increased rating. The Board also notes that although the veteran was separated from his job in 2004, this appears to have been due to his back problems, not to his service-connected PTSD symptoms. A VA Form 21-4192, completed by the veteran's former employer in March 2005, reveals that the veteran was unable to perform his job as a machinist due to his problems with his back. It was indicated that when the veteran initially reported his back problem he was moved to a different machine for a while in an attempt to alleviate heavy lifting. Apparently, this was not sufficient and the veteran left his employer in February 2004. He was awarded both short term disability beginning in March 2004, and long term disability beginning in May 2004. Since it is not factually ascertainable that an increase in disability occurred within one year prior to the receipt of the veteran's claim for an increase; the veteran is not entitled to the award of the 70 percent rating prior to the receipt of his claim on February 14, 2005. Accordingly, the preponderance of the evidence is against the veteran's claim and his an effective date prior to February 14, 2005, for the award of a 70 percent rating for PTSD is denied. Earlier effective date for TDIU The effective date rules for an increased compensation claim also apply for a TDIU claim. Hurd v. West, 13 Vet. App. 449, 451 (2000). The effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2007). TDIU benefits are granted only when it is established that the service- connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v Principi, 15 Vet. App. 1 (2001). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §4.16(b). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The veteran contends that he is entitled to an effective date earlier than February 14, 2005, for the grant of his TDIU award. The Board has carefully reviewed all of the evidence of record, but finds that the assignment of an effective date earlier than February 14, 2005 is not warranted. It is initially noted that in a June 1997 rating action, the RO denied a claim of entitlement to TDIU. The veteran did not appeal this decision and thus, it became final. See 38 C.F.R. § 20.201 (2007). There is no indication of any other unadjudicated formal or informal claim for TDIU prior to February 14, 2005. There have been no specific claims (nor any indication in the record) that any prior rating action should be revised due to clear and unmistakable error. The instant formal claim for TDIU was received at the RO on February 14, 2005. On his VA Form 21-8940, Application for Compensation Based on Unemployability, the veteran stated he had been too disabled to work since February 12, 2004, when he separated from his position as a machinist on workmen's compensation disability. The veteran stated that his disability began to affect his full time employment in December 2003. He noted in the remarks section that he took three medications for his PTSD and their side effects impaired his ability to function, and it was impossible for him to work. Also on this form, the veteran indicated that he was a high school graduate with one year of college. He worked as an assembler from March 1996 to August 1998; as a delivery driver from November 1998 to June 1999; and as a machinist from January 2001 to February 2004. In all positions he worked full-time, 40 hours per week. Based upon a thorough review of all the evidence of record for this time period, the Board finds entitlement to an earlier effective date for the award of entitlement to TDIU is not warranted. Prior to February 14, 2005, service connection was in effect for PTSD, rated 50 percent disabling and a scar, rated as noncompensably (0 percent) disabling. The combined rating was 50 percent. Prior to February 14, 2005 then, the combined rating for the veteran's multiple service-connected disabilities was less than total and the veteran did not meet the percentage criteria for a TDIU under 38 C.F.R. § 4.16(a). Therefore, the only way that the veteran would be entitled to an effective date earlier than February 14, 2005 is if the evidence shows that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to February 14, 2005. See 38 C.F.R. § 4.16 (2007). VA outpatient treatment records from February 14, 2004 to February 13, 2005 are of particular interest. While a few VA treatment records discuss the veteran's ongoing problems with PTSD, at no time was it suggested that the veteran was unemployable due to the service-connected PTSD symptoms, or that the medications taken for PTSD caused impairment which interfered with his ability to obtain or maintain employment. A treatment note dated in March 2004 reveals that the veteran presented with complaints of low back pain secondary to a work-related injury which had occurred in December 2003. The veteran indicated to VA personnel that a private physician certified that he was disabled due to this back injury; and further stated that he had recently begun receiving checks for short-term disability. He denied symptoms of depression. Another VA record dated in September 2004 shows that the veteran was stable on his complex regimen of three psychotropic medications. The records also show that the veteran had begun long-term treatment for his non-service- connected hepatitis and was warned that the side effects from those medications could increase symptoms of depression, fatigue, and mood changes. The veteran's wife submitted a statement in March 2005 indicating that the veteran's PTSD had worsened over the past 2 years. She noted he had been involved in five car accidents and had received numerous traffic citations for various moving offenses. The veteran's wife also stated that the veteran avoided war-related programs as it increased his nightmares, sleep impairment and mood swings. These statements do not address employability, and even if they had the Board notes that the veteran's spouse is not a medical provider and not competent to address whether the veteran's PTSD prevented his ability to maintain employment. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The record otherwise contains no evidence of that the veteran was unable to work due to the service-connected PTSD prior to February 14, 2005. It was not until April 2005, when the veteran was evaluated at a VA examination in connection with his claim for an increased rating, that medical evidence showed he was unable to obtain or maintain employment due to his PTSD. During this examination, the veteran reported that he felt sedated throughout the day and had poor concentration. He also reported increasing irritability and sleep impairment; nightmares two to three times a week, intrusive thoughts, and anxiety. The veteran also stated he startled easily, was hypervigilant, and avoided crowds. He also reported a volatile temper. Based upon a clinical evaluation, the examiner opined the veteran had serious psychosocial functioning. Moreover, the veteran's impulsivity, difficulty with his temper, irritability, inability to sustain established long-standing relationships, and difficulty getting along with others, render him not capable of employment, either active or sedentary, at this time. His reported GAF score was 45. The April 2005 examination report is the earliest evidence in the record showing the veteran was unable to obtain employment due to the service-connected PTSD. On the basis of that examination, the RO awarded a total disability rating based on individual unemployability. Again, there is no probative evidence that he was unemployable as a result of his service-connected disabilities prior to that time. It is again noted that the veteran's former employer certified in March 2005, that the veteran separated from employment because of his non-service-connected back problems. It is otherwise not factually ascertainable that the veteran was unemployable prior to February 14, 2005, due solely to service-connected disabilities. 38 C.F.R. § 4.16. Accordingly, an effective date prior to February 14, 2005 is not warranted. In reaching these decisions the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the veteran's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date earlier than February 14, 2005, for an increased evaluation for PTSD is denied. Entitlement to an effective date prior to February 14, 2005 for the grant of entitlement to a TDIU is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs