Citation Nr: 0811427 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 98-13 898A ) DATE ) MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased initial evaluation for post- traumatic stress disorder (PTSD), currently rated as 70 percent disabling. 2. Entitlement to an effective date earlier than January 27, 2000, for the evaluation of 70 percent assigned for PTSD. 3. Entitlement to an effective date earlier than January 27, 2000, for the assignment of a total rating based on individual unemployability (TDIU). 4. Entitlement to a compensable evaluation for residuals, fracture, left wrist. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Associate Counsel INTRODUCTION The veteran had active service from August 1964 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issue of increased rating for a wrist disorder 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. The Board remanded this matter for further development in February 2000 and June 2003. FINDINGS OF FACT 1. The medical evidence of record indicates that, prior to September 27, 1993, the veteran's PTSD was characterized by mild and transient symptoms. 2. The medical evidence of record indicates that, from September 27, 1993, the veteran's occupational and social impairment from PTSD has been total. 3. On April 17, 2001, the veteran claimed entitlement to a total rating based on his service-connected PTSD. 4. In November 2001, the RO granted the veteran a TDIU, effective April 17, 2001. 5. In a January 2002 statement, the veteran argued for an earlier effective date for the assignment of his TDIU. 6. In a February 2004 Statement of the Case, the RO granted an earlier effective date of January 27, 2000 for the veteran's TDIU. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent, for the veteran's service-connected PTSD, had not been met prior September 27, 1993. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.130, 4.132, Diagnostic Code 9411 (1993) (2007). 2. From September 27, 1993, the criteria for a 100 percent rating for the veteran's service-connected PTSD have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.130, 4.132, Diagnostic Code 9411 (1993) (2007). 3. The criteria for an effective date of September 27, 1993, for the assignment of a 100 percent evaluation for PTSD, have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.105(a), 3.157, 3.400, 4.130, 4.132, Diagnostic Code 9411 (1993) (2007). 4. The criteria for an effective date prior to January 27, 2000, for the assignment of a TDIU, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.157, 3.341, 3.400, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran claims entitlement to an increased rating for his PTSD, and entitlement to earlier effective dates for an increased rating for PTSD, and for a TDIU. In the interest of clarity, the Board will initially discuss whether these claims have been properly developed for appellate purposes. The Board will then address the merits of the claims, providing relevant VA law and regulations, the relevant facts, and an analysis of its decision. I. Veterans Claims Assistance Act of 2000 The Board must determine whether the veteran has been apprised of the law and regulations applicable to this matter, the evidence that would be necessary to substantiate the claims, and whether the claims have been fully developed in accordance with the Veterans Claims Assistance Act of 2000 (VCAA) and other applicable law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). VA is required to provide notice of the VCAA to a claimant as required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). More specifically, VA is required to notify a claimant of the evidence and information necessary to substantiate a claim and whether the claimant or the VA is expected to provide the evidence, and is required to request from the claimant any other evidence in his or her possession that pertains to the claim. Id. VA satisfied VCAA notification requirements here in letters from VA dated in March 2003, August 2003, and March 2006. 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159. VA informed the veteran of the elements comprising his claims and of the evidence needed to substantiate the claims. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2007). VA requested from the veteran relevant evidence, or information regarding evidence which VA should obtain (the Board also finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claims). Pelegrini v. Principi, 18 Vet. App. 112 (2004) (veteran should be notified that he should submit any pertinent evidence in his possession). And VA advised the veteran of the respective duties of the VA and of the veteran in obtaining evidence needed to substantiate his claims. The Board notes deficiencies with VCAA notification, however. VA did not provide notification to the veteran prior to the rating decisions on appeal. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2007) (VCAA notice must be provided to a claimant before the initial unfavorable RO decision). And, with regard to the veteran's increased rating claim for PTSD, VA did not provide the veteran with notification regarding specific disability criteria under Diagnostic Code 9411 of 38 C.F.R. §§ 4.130, 4.132. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Nevertheless, the Board finds that any presumed prejudice incurred by the veteran as a result of the incomplete notice has been rebutted by the record, and that proceeding with a final decision is appropriate here. See Sanders v. Nicholson, 487 F.3d 881 (2007). See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328. With regard to the incomplete notice for PTSD, the Board finds no prejudice because, in this matter, the veteran will be assigned a 100 percent evaluation effective September 27, 1993. Moreover, the Board notes that the RO readjudicated the veteran's claims in several supplemental statements of the case of record. See Mayfield, supra. As such, VA has satisfied VCAA notification requirements in this matter. With regard to VA's duty to assist, the VCAA requires that VA make reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate a claim for benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. The VCAA provides that the assistance provided by the Secretary shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary, as further defined by statute, to make a decision on the claim. 38 U.S.C.A. § 5103A. In this matter, the Board finds that VA's duty to assist has been satisfied as well. The RO obtained medical records relevant to the appeal. VA afforded the veteran the opportunity to appear before one or more hearings to voice his contentions. And VA provided VA compensation examinations for the veteran's claims. In sum, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with VA's duties to notify or assist the veteran in this appeal. Therefore, the veteran has not been prejudiced as a result of the Board deciding his claims here. II. The Merits of the Claim for Increased Rating The veteran claims entitlement to a disability evaluation in excess of 70 percent for his service-connected PTSD. VA service connected the veteran for PTSD in a November 1993 rating decision. In that decision, the RO assigned the veteran a 10 percent evaluation for PTSD, effective the date of the veteran's July 13, 1992 service connection claim for PTSD. During the pendency of the appeal, the RO increased the veteran's disability evaluation. In October 1995, the RO increased the evaluation to 30 percent, effective December 1, 1993. In February 2001, the RO increased the evaluation to 50 percent, effective December 1, 1993. In November 2001, the RO increased the evaluation to 70 percent, effective April 17, 2001. In February 2004, the RO continued the 70 percent evaluation but assigned an earlier effective date of January 27, 2000. And, for the veteran's periods of extended inpatient hospitalization, the RO assigned a 100 percent evaluation from September 27, 1993 to December 1, 1993, and from March 6, 1995 to May 1, 1995. See 38 C.F.R. § 4.29 (2007). Even with the increases in rating here, the Board will continue to review the veteran's claim on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (an appellant is presumed to be seeking the maximum available benefit even where an increase is granted during the appeal period). In this decision, the Board agrees with the veteran's contention that a higher rating is due. Though the evidence does not support a rating in excess of the assigned 10 percent evaluation prior to September 27, 1993, a 100 percent evaluation is warranted from that date. See Fenderson v. West, 12 Vet. App. 119 (1999) (consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim). Ratings for service-connected disabilities are determined by comparing the symptoms the veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based as far as practical on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower evaluation will be assigned. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7. See also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In November 1993, the RO service connected the veteran for PTSD under Diagnostic Code [DC] 9411 of 38 C.F.R. § 4.132. Since then, new rating criteria for psychiatric disabilities were promulgated and have been in effect since November 7, 1996. As the veteran filed his claim prior to that date, the Board will consider the old and new criteria in deciding his claim. See Karnas v. Derwinski, 1 Vet. App. 308 (1991) (where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply). Under the old and new versions of DC 9411, ratings of 0, 10, 30, 50, 70, and 100 percent may be assigned. As the Board finds staged ratings appropriate here, prior to and since September 27, 1993, the Board will address these two periods separately. Prior to September 27, 1993 VA has assigned a 10 percent rating from July 13, 1992 to December 1, 1993. 38 C.F.R. § 4.132 (1993). Under the old diagnostic criteria for PTSD, in effect prior to November 7, 1996, a 30 percent rating is assigned when there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment. 38 C.F.R. § 4.132, Code 9411. Under the newer diagnostic criteria for PTSD, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411, effective November 7, 1996. Following a review of the evidence of record, the Board finds a rating in excess of 10 percent unwarranted prior to September 27, 1993. The record shows that the veteran filed his claim for service connection for PTSD in July 1992. The earliest medical evidence pertaining to PTSD symptoms is VA treatment records dated in October 1992. These records show that the veteran requested a mental health referral, and that he complained of depression, stress, anxiety, nightmares and flashbacks. The records also show that the veteran was described as "mildly" depressed in November 1992. In a May 1993 VA compensation examination report, moreover, the veteran reiterated many of the same symptoms noted in the October and November 1992 treatment records. But this report does not indicate significant social or occupational impairment. As such, the record would not support the assignment of a rating in excess of 10 percent prior to September 27, 1993. 38 C.F.R. §§ 4.130, 4.132, DC 9411. Since September 27, 1993 The medical evidence supports the assignment of a 100 percent rating from September 27, 1993, however. Under the older version of DC 9411, a 100 percent rating is warranted when there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; or when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; or when the veteran is demonstrably unable to obtain or retain employment. Under the newer version of DC 9411, a 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In this matter, the medical evidence dated from September 1993 to January 2008 indicates total social and occupational impairment. In a November 1993 letter to VA, the veteran's treating VA physician noted that he treated the veteran for PTSD on an inpatient basis. The physician found the veteran with the "full range of PTSD symptoms" and stated that the veteran was "unable to work." A November 1994 VA infeasibility determination found that the veteran's socio/industrial impairment is so severe as to preclude reasonable feasibility of achieving a vocational goal. Several VA compensation examination reports dated from November 1994 to August 2004 note severe PTSD symptomatology. The November 1994 examiner noted the veteran's chronic alcoholism, his extremely poor sleep, and his severe depression. And the examiner noted that the veteran appeared to minimize his symptoms. The December 1996 examiner noted the veteran's isolation and his recent third marriage and divorce. The October 1997 examiner noted the veteran's thoughts of homicide, his extreme anger and violence, his depression, poor judgment, and blunted affect. This examiner noted major impairment in social judgment and impulse control. The June 2000 examiner noted isolation, chronic anxiety and panic attacks, nightmares, the veteran's labile affect, and his poor impulse control. This examiner found the veteran as unemployable. And the August 2004 examiner noted that PTSD has adversely affected the veteran's psychosocial functioning and his employability. This examiner noted that the veteran had not worked for 14 years, and that he "spends most of his time in isolation in his home." The record contains letters from the veteran's counselors at the Vet Center, dated between November 1994 and June 1999. These letters note the adverse affect on the veteran's social and occupational standing caused by his severe lack of flexibility and reliability, note that the veteran has isolated himself, note an inability to stay focused and concentrate, note the veteran's four marriages and divorces and his inability to stay in healthy relationships, note "non-existent" effective working relationships, note regular anxiety attacks, nightmares, depressions, and anger outbursts, note increased memory impairment, and note as "unattainable" the prospect of a normal life style. In treatment notes dated between October 2001 and January 2008, the veteran's treating VA physician (Dr. J.L., MD) noted the veteran's chronic PTSD symptoms, and noted the veteran's inability to maintain relationships and employment. In the January 2008 record, the physician stated that the veteran "was unemployable from his PTSD and his prognosis is poor. He will not show any improvement." Again, the medical evidence of record dated since the veteran's September 1993 inpatient PTSD treatment indicates that the veteran has experienced total social and occupational impairment since September 27, 1993. As such, a 100 percent rating is warranted since then. In summary, the Board finds a 10 percent rating warranted for the veteran's service-connected PTSD prior to September 27, 1993, and finds a 100 percent evaluation warranted from September 27, 1993. See Fenderson and AB, both supra. But the preponderance of the evidence is against any additional increase. The benefit-of-the-doubt rule does not apply therefore to any claim for additional increase. Any such claim for increase must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. The Merits of the Claims for Earlier Effective Dates In a November 2001 rating decision, the RO granted the veteran a 70 percent evaluation for his PTSD, and granted him a TDIU. The RO assigned an April 17, 2001 effective date for both. The veteran filed a notice of disagreement against this decision, arguing that an earlier effective date should be assigned. In a February 2004 rating decision, the RO granted an earlier effective date of January 27, 2000. Nevertheless, the veteran continues with his appeal. See AB, supra. For the reasons set forth below, the Board agrees that an earlier effective date is warranted for the PTSD evaluation. But the Board finds an earlier effective date unwarranted for the TDIU. The applicable law and regulations concerning effective dates state that, except as otherwise provided, 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. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2); see also 38 C.F.R. § 3.400(o); cf. 38 C.F.R. § 3.157. In this matter, the record supports the assignment of an earlier effective date for the increase in disability evaluation for PTSD. As detailed in Part II of this decision, the Board finds a 100 percent rating warranted for PTSD from September 27, 1993. With regard to the TDIU claim, however, the Board finds an earlier effective date unwarranted because the veteran did not file a claim for a TDIU until April 17, 2001. Though the RO later found a January 27, 2000 effective date warranted, the Board does not find another earlier effective date warranted. Simply put, the "date of receipt of the claim" was April 17, 2001. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. And any medical evidence of record indicating total impairment within one year prior to the April 17, 2001 claim has been considered by the RO in its assignment of a January 27, 2000 effective date. See 38 C.F.R. § 3.157. As such, an earlier effective date for the TDIU is unwarranted here. The Board finds an extraschedular rating unwarranted here. Application of the regular schedular standards is found practicable in this matter. Hence the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for assignment of an extra-schedular evaluation. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has closely reviewed and considered the veteran's statements in this matter, and those of his former spouses. While these statements may be viewed as evidence, the Board must also note that laypersons without medical expertise or training are not competent to offer medical evidence on matters involving diagnosis and etiology. Therefore, the statements alone are insufficient to prove the veteran's claims. Ultimately, a lay statement, however sincerely communicated, cannot form a factual basis for granting a claim requiring medical determinations. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). ORDER 1. Entitlement to an initial rating in excess of 10 percent for the veteran's PTSD prior to September 27, 1993, is denied. 2. From September 27, 1993, a 100 percent disability evaluation, for the veteran's PTSD, is granted, subject to the law and regulations controlling the award of monetary benefits. 3. Entitlement to an effective date of September 27, 1993, for the assignment of a 100 percent evaluation for PTSD, is granted, subject to the law and regulations controlling the award of monetary benefits. 4. Entitlement to an earlier effective date for the grant of a TDIU is denied. REMAND In January 2008, the U.S. Court of Appeal for Veterans Claims (Court) issued its decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In this decision, the Court addressed VA claims for increased compensation. In relevant part, the Court stated in Vazquez-Flores that, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Id. In March 2003, August 2003, and March 2006, the RO submitted to the veteran VCAA letters pertaining to the veteran's increased rating claim for a wrist disorder. But these letters did not address the disability criteria in the diagnostic codes pertaining to the disorder at issue (i.e., Diagnostic Codes 5003, 5010, 5214, 5215). Accordingly, the case is REMANDED for the following action: 1. The RO should submit to the veteran a new VCAA letter addressing the veteran's increased rating claim for a wrist disorder. See Vazquez-Flores, supra. 2. In the letter, the RO should advise the veteran that he may submit evidence showing any effects of worsening, or increase in severity, upon his employment and daily life. 3. In the letter, the RO should provide specific notice of the criteria in the DCs at issue here - DCs 5003, 5010, 5214, 5215. 4. The RO should then readjudicate the issue on appeal. If a determination remains unfavorable to the veteran, the RO should issue a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The veteran 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. 2007). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs