Citation Nr: 1007705 Decision Date: 03/02/10 Archive Date: 03/11/10 DOCKET NO. 07-28 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE 1. Entitlement to a higher initial rating for posttraumatic stress disorder (PTSD), evaluated as 30 percent disabling effective May 4, 1982. 2. Entitlement to an increased rating for PTSD, currently rated as 70 percent disabling effective April 2, 2002. 3. Entitlement to an effective date earlier than April 2, 2002, for the granting of a total disability rating based on individual unemployability (TDIU). 4. Entitlement to service connection for defective vision. 5. Entitlement to service connection for a borderline personality disorder. 6. Entitlement to a higher initial rating in excess of 20 percent for degenerative joint and disc disease of the lumbar spine effective May 4, 1982. REPRESENTATION Appellant represented by: Kenneth M. Carpenter ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to April 1972. The claim comes to the Board of Veterans' Appeals (Board) on appeal from June 1982, May 2003, January 2006 and December 2006 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issues of entitlement to service connection for defective vision and a borderline personality disorder were remanded by the Board in January 2005 for further development. The issue of entitlement to service connection for a skin rash was also remanded by the Board at that time. The RO has since issued a December 2006 rating decision awarding service connection for tinea pedis, tinea cruris, and onychomycosis (also claimed as jungle rot). The grant of service connection constitutes a complete grant of the claim. As such, this issue is no longer in appellate status. In January 2005, the Board also remanded the issue of entitlement to service connection for a low back disorder. In December 2006, the RO issued a rating decision in which it granted service connection for a low back disability with a 20 percent rating effective May 4, 1982; and a 40 percent rating effective March 20, 2006. In August 2007, the Veteran filed a timely notice of disagreement in which he argued that his 20 percent rating from May 4, 1982, should be higher. The RO has not issued a statement of the case in regard to this issue. Thus the Board must remand the issue so that the RO can send the Veteran a statement of the case, and to give him an opportunity to perfect an appeal of the issue by thereafter filing a timely substantive appeal. Manlincon v. West, 12 Vet. App. 238 (1999). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND PTSD The Board notes that the Veteran's original claim of entitlement to service connection for PTSD was filed in May 1982. He filed a timely notice of disagreement and a timely substantive appeal. For reasons that are unclear, the case was never transferred to the Board for appellate adjudication. Time passed and the Veteran filed another claim in March 2002. The RO granted service connection for PTSD by way of a May 2003 rating decision, assigning a 70 percent evaluation effective April 4, 2002. The Veteran appealed, and in September 2005, the Board determined that because the Veteran's original claim never made it to the Board, there was no prior final decision. As such, the Board concluded that the effective date of service connection should have been May 4, 1982 (the date of the original claim). The RO then issued a January 2006 rating decision in which it established an effective date of May 4, 1982, for the granting of service connection for PTSD. It awarded a 10 percent rating from May 4, 1982; the 70 percent rating already effective from April 4, 2002 was left undisturbed. Subsequent to the Veteran filing a notice of disagreement for a higher rating, the RO issued a December 2006 rating decision in which it increased the Veteran's rating to 30 percent effective May 4, 1982. The effective date of the 70 percent rating was moved up two days to April 2, 2002. It is not clear whether or not this was intentional (there are outpatient treatment reports dated April 2 and April 4) or if it was simply a typographical error. The Veteran has argued that he should have been rated as 100 percent disabled effective May 4, 1982, contending that he should have been rated under the diagnostic criteria in existence prior to November 7, 1996. The Board notes that since the Veteran's original claim never resulted in a final decision, the Veteran's appeal has remained pending since that time. Moreover, during the pendency of the Veteran's appeal, the regulations pertaining to the evaluation of psychiatric disabilities have been amended. The Board notes that prior to November 7, 1996, a 100 percent rating was assigned when there were 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. A 70 percent evaluation was assigned when the Veteran's ability to establish and maintain effective or favorable relationships with people was severely impaired and the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. A 50 percent rating was assigned when there was considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and when, by reason of psychoneurotic symptoms, the reliability, efficiency, and flexibility levels were so reduced as to result in considerable industrial impairment. A 30 percent rating was assigned for definite impairment in the ability to establish or maintain effective and wholesome relationships with people, and when the psychoneurotic symptoms resulted in such reduction in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. 38 C.F.R. § 4.132 (prior to November 7, 1996). In Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991), the United States Court of Veterans Appeals (now the United Stated Court of Appeals for Veterans Claims) (Court) held that when the governing law or regulations change during an appeal, the most favorable version will be applied. The United States Court of Appeals for the Federal Circuit (Federal Circuit) subsequently overruled Karnas to the extent that it indicated retroactive application of a new law or regulation might be appropriate in the absence of language in the law or regulation requiring such application. See Kuzma v. Principi, 341 F.3d 1327, 1328-1329 (2003). However, in this case the Veteran is arguing that application of the old criteria would result in a higher rating. The RO neglected to apply or even consider the pre-amended criteria. Moreover, as noted the January 2007 notice of disagreement, the Veteran has not been informed of the information or evidence necessary to substantiate his claim (by way of VCAA notice) under the old criteria. As such, the Board finds that the PTSD claims must be remanded so that the RO can re-issue VCAA notice that will advise the Veteran of the pre-amended rating criteria. The RO must also issue a supplemental statement of the case in which it readjudicates the claims under the old and new rating criteria. Additionally, the Veteran has submitted a Social Security earnings statement as evidence that the Veteran has not been able to work due to PTSD. The Board notes that the earnings statement has no means by which to identify it as the Veteran's. The Veteran should be informed that this evidence, in the absence of a means to identify it, is not furthering his claim. He should be informed of this and given an opportunity to submit a more thorough copy of the statement. Finally, since the precise nature of the Veteran's medical history may be relevant in the present case, if it is determined that the Veteran is receiving Social Security disability benefits, the Board notes that VA has a duty to obtain Social Security Administration (SSA) records when they may be relevant and VA has actual notice that the Veteran is receiving SSA benefits. See Voerth v. West, 13 Vet. App. 117, 121 (1999); Baker v. West, 11 Vet. App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). Accordingly, if the Veteran is receiving SSA benefits, the RO should contact the SSA and obtain and associate with the claims file copies of the Veteran's records regarding SSA benefits, including the medical records upon which any decision was based. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2)(2009). Lumbar Spine A December 2006 RO rating decision granted service connection for chronic low back pain and assigned a 20 percent rating. In August 2007, the Veteran submitted a notice of disagreement with regard to the rating percentage. However, as statement of the case has not yet been issued, a remand for this action is required. See Manlincon v. West, 12 Vet. App. 238 (1999). Defective vision and borderline personality disorder As noted in the introduction, these issues were remanded by the Board in January 2005. The Veteran has not offered additional evidence or argument with respect to these issues. However, he has not withdrawn the issues and they remain in appellate status. Given the significant lapse in time since the 2005 remand, and given that the other remand actions being undertaken at the present time, such as the potential acquisition of any outstanding SSA records could result in pertinent evidence being added to the record with respect to the vision and borderline personality claims, the Board finds that a final decision should be deferred at this time. Upon remand, the Veteran should be given the opportunity to provide any additional argument and evidence. TDIU Since the PTSD increased rating claim is intertwined with the claim of an earlier effective date for a TDIU, the Board finds that the claim must be developed and adjudicated prior to appellate consideration of the earlier effective date claim for TDIU. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Additionally, the Court recently held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability. Id. in light of the above authority, in readjudicating the Veteran's claim of entitlement to an earlier effective date for TDIU, the RO should consider not only the date at which the claim was expressly raised, but also the first date at which such claim could be reasonably raised by the record. Accordingly, the case is REMANDED for the following actions: 1. The RO should ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully satisfied. See also 38 C.F.R. § 3.159 (2003). The RO's attention is directed to Quartuccio v. Principi, 16 Vet. App. 183 (2002) pertaining to the amended version of 38 U.S.C.A. § 5103(a), which requires that the Secretary identify for the appellant which evidence the VA will obtain and which evidence the appellant is expected to present. The RO should provide the appellant written notification specific to the claims of entitlement to an increased rating for PTSD and entitlement to an earlier effective date for a TDIU. The appellant should further be requested to submit all evidence in his possession that pertains to his claims. Specific notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) should: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claims (particularly, the information needed to substantiate his claim for an increased rating for PTSD under both the pre-amended and the current rating criteria); (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) explain how VA establishes disability ratings and effective dates. 2. The Veteran should be informed that the Social Security earnings statement that he submitted has no means by which to identify it as the Veteran's; and that he should resubmit it with some means of linking it to the Veteran. The RO should also inquire as to whether the Veteran is receiving Social Security Benefits. 3. If, and only if, the Veteran indicates that he is receiving Social Security Benefits, the RO should contact the Social Security Administration (SSA) and obtain and associate with the claims file copies of the Veteran's records regarding SSA benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. 4. With regard to the issue of entitlement to a higher initial rating for a low back disability, the RO should take appropriate action pursuant to 38 C.F.R. § 19.26, including issuance of a statement of the case, so that the Veteran may have an opportunity to complete and appeal by filing a timely substantive appeal if he so desires. 5. The Veteran should be advised that the issues of entitlement to service connection for defective vision and borderline personality disorder remain on appeal and advised that he may submit any additional evidence or argument as he deems fit. 6. Thereafter, the RO should review the claims file and ensure that no other notification or development action is indicated. If further action is required, the RO should undertake it before further adjudication of the claims. 7. After completing any additional development deemed necessary, the RO should readjudicate all of the perfected claims and with consideration of all of the evidence obtained since the issuance of the most recent statement of the case or supplemental statement of the case; if an appeal is not perfected on the low back claim following issuance of a statement of the case, then such claim need not be further adjudicated. 8. If the RO's decision is adverse to the Veteran, he and his representative should be provided a supplemental statement of the case as to all perfected claims, which must contain notice of all relevant action taken on the claims, to include a summary of all of the evidence added to the record The appellant 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). _________________________________________________ ERIC S. LEBOFF Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).