Citation Nr: 0809732 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 06-13 968 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an effective date earlier than December 27, 2004, for the grant of service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than December 27, 2004, for a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The veteran served on active duty from January 1949 to January 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD with a 30 percent evaluation, effective December 27, 2004, and TDIU, with an effective date of December 27, 2004. The veteran disagreed with the effective date of the grant of service connection for PTSD and TDIU and the current appeal ensued. Pursuant to 38 C.F.R. § 20.900(c), this case is advanced on the docket for good cause shown. This case is now ready for appellate review. FINDINGS OF FACT 1. The veteran filed a claim for a total disability rating on September 12, 2003. 2. With resolution of the benefit of the doubt, the veteran was unemployable due to service-connected disorders as of September 12, 2003. 3. The veteran filed a claim for service connection for PTSD on December 27, 2004. 4. By rating decision of July 2005, service connection for PTSD was granted with an evaluation of 30 percent, effective December 27, 2004. CONCLUSIONS OF LAW 1. An effective date of September 12, 2003 for the grant of a total disability evaluation is warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(o)(2) (2007). 2. An effective date earlier than December 27, 2004 for the grant of service connection for PTSD is not warranted. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(b)(2) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify Under the Veterans Claims Assistance Act of 2000 (VCAA), VA is required to notify the veteran of any evidence that is necessary to substantiate his claim. This includes notifying the veteran of the evidence VA will attempt to obtain and that which the veteran is responsible for submitting. Proper notice must inform the veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the veteran is expected to provide; and (4) must ask the veteran to provide any evidence in his possession that pertains to the claim. See 38 C.F.R. § 3.159 (2007). These notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability; a connection between the veteran's service and the disability; degree of disability; and the effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a veteran before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Notice errors (either in timing or content) are presumed prejudicial, but VA can proceed with adjudication if it can show that the error did not affect the essential fairness of the adjudication by showing: 1) that any defect was cured by actual knowledge on the part of the veteran; 2) that a reasonable person could be expected to understand from the notice what was needed; or 3) that a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (2007). To proceed to a decision on the merits would not be prejudicial to the veteran in this instance. In this case, the veteran received a Dingess letter, indicating what was necessary for substantiation of an earlier effective date claim. He received a grant of service connection and a grant of a total rating, and the effective date was provided at the time of the grants. The veteran's receipt of a Dingess letter in June 2006 indicates in part what is necessary to substantiate a claim for an earlier effective date. Therefore, the veteran had actual knowledge of what is necessary for substantiation of an earlier effective date claim and the error does not affect the essential fairness of the adjudication. The RO has taken appropriate action to comply with the duty to assist the veteran with the development of his claims. The record includes VA treatment records, Social Security Disability records, and medical opinions provided by VA examiners. There are no known additional records or information to obtain. A hearing was offered, and the veteran declined. As such, the Board finds that the record as it stands, if required, includes sufficient competent evidence to decide these claims. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds no further action is necessary to assist the veteran with his claims. Analyses of the Claims The veteran maintains that an effective date earlier than December 27, 2004, is warranted for the grant of service connection for PTSD and a total rating. Having carefully considered the appellant's contentions in light of the evidence of record and the applicable law, the Board finds that the weight of the evidence as to the effective date of the grant of a total rating is in approximate balance and the claim will be granted on this basis. 38 U.S.C.A § 5107(b) (West 2002); Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (Observing that under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the claimant shall prevail upon the issue). The Board presently grants an effective date of September 12, 2003 for the total rating, based upon receipt of the veteran's claim, but denies the claim for an earlier effective date for the grant of service connection for PTSD. The assignment of effective dates is governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2007). These provide, in pertinent part, that an effective date of service connection will be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a),(b)(1); 38 C.F.R. § 3.400(b)(2) (2007). In a claim for a increased ratings, including total ratings, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date otherwise, date of the receipt of the claim. 38 C.F.R. § (o)(2) (2007). The veteran filed a claim for a total rating which was received by VA on September 12, 2003. The evidence received within one year prior to receipt of the claim includes an April 2003 VA medical examination. The veteran then reported that he experienced recurrent fungal infections to the feet, abnormal nail growth in his hands, and that he would experience burning, tingling, and numbness to the feet and hands, although the left hand had become progressively worse in these symptoms. He also reported sleep disturbances due to foot burning, numbness, aching and tingling. In a separate examination, the veteran was also noted to have both hearing loss and tinnitus. Although the examiner noted that the hearing loss was consistent with the veteran's age of 71, the examiner nonetheless opined that both hearing loss and tinnitus "could" be caused by the veteran's military service - both factors later cited by the RO in granting service connection for these disorders by rating decision dated in September 2003. Associated medical treatment records indicate that the veteran had increasing difficulties with activities of daily living due to hearing loss, tinnitus, and the cold weather residual injuries of his hands and feet. In a rating decision dated September 3, 2003 and forwarded to the veteran on September 6, 2003, the RO granted service connection for hearing loss, tinnitus, cold weather injury residuals of the right hand, cold weather injury residuals of the left hand and assigned disability ratings of zero, 10, 30 and 30 percent, respectively. Further, the RO granted increased ratings for cold weather residuals of the right and left feet to 30 percent. The cold weather residual injuries (evaluated at their maximum schedular ratings) were assigned effective dates of April 3, 2002. Thus, the veteran's combined schedular evaluation was 90 percent, effective April 3, 2002. Shortly after submission of his claim for a total rating received on September 12, 2003, the veteran underwent a VA general medical examination in October 2003. It was noted that he was in receipt of service connection for cold injury. This included his hands and feet. The examiner indicated that the veteran's service-connected cold injury disability had significant impact on his ability to function, but with adaptations he should be able to secure sedentary employment. Thus, up to and including the time period ending October 2003, the only evidence generated with a specific view towards ascertaining the impact of the service-connected disorders on the veteran's employability indicated that he was capable of such employment. The initial indication of the veteran's unemployability due to service-connected disorders is dated in December 2003, the date the veteran underwent an evaluation for Chapter 31 benefits. The extended evaluation occurred in December 2004. It was initially found that the combination of cold injury impairment (for which the veteran was in receipt of service connection) and other nonservice-connected disabilities created an employment handicap. In light of the veteran's service-connected and nonservice-connected conditions, his advanced age, lack of education and his wife's cognitive decline, he was found not to be employable and was not expected to improve within the next 12 months. The vocational rehabilitation counselor indicated that he did not believe that the veteran was employable or that he could benefit from the program. His PTSD was described as chronic and severe and he was noted to be involved in a PTSD/Korean War group therapy. A final feasibility determination indicated that cold weather injuries would in and of themselves severely impair and limit his ability to obtain and retain suitable employment. In March 2005, it was determined that it was not reasonably feasible for the veteran to enter vocational planning or employment. In March 2005, the veteran underwent a VA psychiatric examination. The examiner indicated that a review of all pertinent records, including the claims file, was made prior to interviewing the veteran. According to the records, the veteran had not previously been evaluated for PTSD. The diagnostic impression was PTSD, moderate to severe delayed onset, chronic (pending verification of stressors), and depression secondary to PTSD. The examiner indicated that the veteran's psychiatric diagnoses would render the veteran unemployable at the time of the examination. Effective Date -Total Rating The law provides that in evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. In determining whether unemployability exists, consideration may be given to the claimant's level of education, special training and previous work experience, but not to the claimant's age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The record indicates that the veteran was employed as a pipe fitter and otherwise in the building trades since discharge from active military service. Without regard to the question of his age which may not be considered, the record developed as of the date of claim (September 12, 2003) bore evidence of both significant service-connected disability and resulting unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (Holding that once a veteran submits evidence of both service-connected disability and evidence of unemployability, VA is obligated to consider total rating based on individual unemployability). Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Given the short time span covering the date of the veteran's claim for a total rating (September 12, 2003); an indication that he remained employable (October 2003 VA examination) and the development of his application for Chapter 31 benefits, indicating his unemployability due to service-connected disorders (December 2003), the Board will grant the benefit of the doubt to the veteran and assign an effective date of September 12, 2003 for a total rating. Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Effective Date - Service Connection for PTSD The veteran also seeks an effective date earlier than December 27, 2004 for the grant of service connection for PTSD. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. The veteran did not apply for service connection for PTSD until December 27, 2004. VA medical records show that as early as May 2004, the veteran underwent an initial evaluation by the PTSD clinical team in order that he be able to participate in the PTSD Korean War group. He had never been treated by a mental health professional but had been given Xanax on an as needed basis by a non-VA primary care provider. In addition to adjustment disorder with mixed depression and anxiety related to his wife's cognitive decline, the veteran was also found to have PTSD, chronic , moderate, pending verification of stressors. The veteran's first VA examination for PTSD for compensation and pension purposes was in May 2005. This examination provided a diagnosis of PTSD, pending verification of stressors. In due course, the veteran submitted a stressor statement in February 2005. Since this claim was not made within one year of service discharge, service connection can not be effective any earlier than the date of claim or the date entitlement arose, whichever is later. Therefore, an effective date earlier than December 27, 2004, for the grant of service connection for PTSD is not warranted. ORDER Based on facts found, an effective date of September 12, 2003 for the grant of a total rating is assigned. To this extent, the appeal is allowed. An effective date earlier than December 27, 2004 for the grant of service connection for PTSD is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs