Citation Nr: 1004403 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 06-27 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a rating higher than 20 percent for diabetes mellitus. 2. Entitlement to an effective date earlier than November 3, 2003, for the grant of service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active service from May 1964 to May 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions in July 2004 and July 2007 rating determination by the above Department of Veterans Affairs (VA) Regional Office (RO). The issues of entitlement to an increased rating for diabetes and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An original claim for service connection for PTSD was filed in January 1998 and denied by the RO in a March 1998 rating decision. The denial was affirmed by the Board in May 2000 decision. 2. A subsequent claim for service connection for PTSD was denied by the RO in February 2002 and not appealed. 3. On November 3, 2003, the RO received the Veteran's informal claim to reopen his claim for entitlement to service connection for PTSD. 4. In July 2007, the RO granted service connection for PTSD. It was held that there was new and material evidence, and that there was a basis for allowance of the claim. An effective date of November 3, 2004 was assigned. 5. The Veteran disagreed with the effective date and in an August 2008 decision the RO assigned an earlier effective date of November 3, 2003, the date of the Veteran's reopened claim. CONCLUSIONS OF LAW 1. The May 2000 Board denial of service connection for PTSD is final. 38 U.S.C.A. §§ 7103, 7104(a) (West 2002); 38 C.F.R. §§ 20.1100, 20.1105 (2009). 2. The rating decision in February 2002 is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2009). 3. The criteria for an effective date earlier than November 3, 2003, for the grant of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400(q)(ii) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pertinent Law and Regulations Earlier Effective Dates Board decisions are final when issued unless the Board's Chairman has ordered reconsideration of the decision, the claimant files an appeal to the U.S. Court of Appeals for Veterans Claims (Court), or another exception to finality applies such as the decision was clearly and unmistakably erroneous. 38 U.S.C.A. §§ 5108, 7104(b) (West 2002). Except as otherwise provided, 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 an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2009). For disability compensation stemming from direct service connection, the effective date will be the day following separation from active service or date entitlement arose if claim is received within 1 year of separation from active service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2009). This case, however, is governed by criteria pertinent to effective dates for reopened claims. Because service connection was granted for PTSD on the basis of new and material evidence received after a prior final denial, the effective date would be the latter of the date of the reopened claim or the date entitlement arose. 38 C.F.R. § 3.400(q)(1)(ii), (r) (2009). Service connection was ultimately granted based on the Veteran's specific request to reopen his claim received on November 3, 2003. Upon careful review of the pertinent evidence of record, the Board finds that the preponderance of the evidence is against an effective date earlier than November 3, 2003. The reasons follow. Factual Background and Analysis The Veteran's original claim for service connection for PTSD was denied by the RO in 1998. The denial was upheld by the Board in May 2000. The Veteran has not asserted, that there was clear and unmistakable error in the Board's May 2000 decision. As such, the Board's May 2000 claim is final. The Veteran filed to reopen his claim for PTSD on April 27, 2001. The claim was denied by the RO in a February 2002 rating decision; the Veteran was notified of the denial the following month along with his appellate rights. There was no further response from the Veteran indicating an intent to continue the appeal. The Veteran filed his most recent claim to reopen on November 3, 2003. In July 2007, the RO granted service connection for PTSD, concluding that new and material evidence had been submitted and that there was a basis for allowance. A 50 percent evaluation was assigned, effective November 3, 2004. The Veteran disagreed with the effective date and in August 2008, the RO assigned an earlier effective date of November 3, 2003, the date of the Veteran's reopened claim. The Veteran now contends that that the effective date for service connection for PTSD should date back to 1998, when he filed his original claim for service connection. He noted that he was sent for a VA examination in 2000 during which time he was diagnosed with PTSD. He asserts that he has had an active appeal on this issue and thus should receive compensation from that point. Applying the relevant law and regulations cited above to the facts of this case, the Board finds that because the February 2002 denial is a final decision, the claim upon which the decision is based cannot serve as the basis for assignment of an effective date for a subsequent award of service connection. Since the currently assigned effective date of November 3, 2003, represents the date the RO received notice of the Veteran's most recent intent to reopen his PTSD claim, following the prior final denial of that claim, there simply is no legal authority to assign an earlier effective date, (as indicated above, the effective date of a reopened claim is the date of the claim or the date entitlement arose, whichever is later). See 38 C.F.R. § 3.400(q)(1)(ii) (2009). With all due respect for the Veteran's belief in the validity of his claim, the Board is constrained by the law and regulations described above governing the establishment of effective dates for the award of compensation. 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2009). As the preponderance of the evidence weighs against the claim, the appeal must be denied. 38 U.S.C.A. § 5107(b) (West 2002). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA's duty to notify the claimant of the information and any medical or lay evidence that is necessary to substantiate the claim was satisfied by a letter sent to the Veteran in December 2003. The Veteran also received a letter dated in March 2006 regarding effective dates. Notwithstanding the belated notice regarding effective dates, the Board determines that the Veteran was not prejudiced in this regard as his claim was readjudicated in the June 2006 Supplemental Statement of the Case. In any event, if any deficiency is present, the Court has held that a Veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). No additional development could alter the evidentiary or procedural posture of this case. In the absence of potential additional evidence, no notice is necessary. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant]. The Board therefore finds that VA's duties to notify and assist contained in the VCAA are not applicable to this claim. ORDER An effective date prior to November 3, 2003, for the grant of service connection for PTSD is denied. REMAND The Veteran is seeking a higher rating for his service- connected diabetes mellitus. The Board has determined that additional development is required for the reasons discussed below. A recent VA examination in July 2008 shows the Veteran's diabetes mellitus necessitates the use of daily use of insulin and requires him to follow a restricted or special diet. This supports the current 20 percent rating. However, for a higher rating of 40 percent, the foregoing criteria must be shown, plus there would have to be "regulation of activities" (avoidance of strenuous occupational and recreational activities) due to diabetes; but this additional requirement is not shown. In fact, the 2008 VA examiner noted, explicitly, that the Veteran was not restricted in his ability to perform strenuous activity. However at his most recent VA examination in January 2009, the Veteran indicated that he avoided progressive activity to prevent a "sudden drop in sugar", but the examiner did not make a specific determination that regulation of activities was medically required because of diabetes. Rather in summarizing all effects on occupational and daily activities, he indicated only that the Veteran appeared moderately affected by his condition. In the September 2009 Informal Hearing Presentation, the Veteran's representative challenged the adequacy of the 2009 examination, on the basis that the VA examiner failed to show specifics, particularly whether or not the Veteran was restricted by diet or activities because of his diabetes. Thus to ensure that the record reflects the current severity of the Veteran's condition, the Board finds that a more contemporaneous examination is needed. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). The examination should include a review of the Veteran's claims file and past clinical history, with particular attention to the severity of present symptomatology, as well as any significant pertinent interval medical history since the VA examination in 2009. This should include clarification as to whether regulation of the Veteran's activities is medically required because of diabetes. Any additional relevant records of VA or private treatment that are not currently of record should be obtained and associated with the claims file. Because the Veteran's claim for TDIU is inextricably intertwined with the pending increased rating claim for diabetes mellitus, it is appropriate to defer consideration of this claim until the development requested is complete. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Accordingly, a decision on the TDIU issue is deferred pending completion of the actions requested below. Accordingly, the case is REMANDED for the following action: 1. If necessary, issue to the Veteran additional VCAA notice with regard to her increased rating and TDIU claims, such as providing him with updated notice of what evidence has been received and not received by VA, as well as who has the duty to request evidence, and what development must be undertaken by VA in accordance with applicable case law. See generally Vazquez-Flores v. Peake, 22 Vet App. 37 (2008); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5103, 5103A; 38 C.F.R. § 3.159. 2. Contact the Veteran and obtain the names and addresses of all medical care providers who have provided recent treatment of his service-connected diabetes. After he has signed the appropriate releases, those records which are not already in the claims folder should be obtained. All attempts to procure records should be documented in the file. If the records identified by the Veteran cannot be obtained, a notation to that effect should be inserted in the file. He is to be notified of unsuccessful efforts in this regard, in order that he be provided the opportunity to obtain and submit those records. 3. The RO should forward the Veteran's claims folder to an appropriate medical professional for a more detailed and responsive opinion regarding the severity of the Veteran's diabetes. The claims folder must be reviewed by the medical professional and he or she should specifically note that the file has been reviewed. The medical professional should specifically describe the restrictions on diet as well as the regulation of the Veteran's activities due to diabetes, if any. The complete rationale underlying any conclusions drawn or opinions expressed must be given. If the examiner is unable to provide the requested opinion without resorting to speculation, it should be so stated. Moreover, if it is determined that another objective examination is required in order to fully respond to this inquiry, then one may be scheduled and all necessary tests conducted. 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the increased rating and TDIU claims by evaluating all evidence obtained after the last statement or supplemental statement of the case (SSOC) was issued. Make a determination as to whether the Veteran meets the rating criteria for TDIU set forth in 38 C.F.R. §§ 4.15, 4.16, and whether he is precluded, solely by service- connected disabilities, from following a substantially gainful occupation. 5. If the benefits sought on appeal remain denied, furnish the Veteran and his representative an appropriate SSOC containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, including VCAA and any other legal precedent. 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. 2009). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs