Citation Nr: 1121696 Decision Date: 06/03/11 Archive Date: 06/09/11 DOCKET NO. 06-37 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date earlier than January 26, 2006, for the grant of a 100 percent disability evaluation for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from July 1965 to August 1968. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating determination of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which granted a 100 percent disability evaluation for PTSD, with an effective date of January 26, 2006. The Veteran appeared at a videoconference hearing before the Board in April 2008. The transcript has been associated with the claims folder. In a December 2008 decision, the Board denied entitlement to an effective date earlier than January 26, 2006, for the assignment of a 100 percent disability evaluation for PTSD. Thereafter, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a single judge memorandum decision issued in October 2010, the Court reversed the December 2008 decision that found that the July 2006 notice of disagreement applied only to the April 2006 rating determination and set aside the remainder of the Board decision and remanded the matter for further adjudication. As a result of the Court's decision, the controlling rating determination now becomes the October 2005 rating determination. FINDINGS OF FACT 1. In a February 1994 rating determination, the RO granted service connection for PTSD and assigned a 30 percent disability evaluation effective June 7, 1993. The Veteran was notified of this decision in March 1994 and did not appeal the decision within the one year period and the decision became final. 2. In a March 1995 rating determination, the RO denied an evaluation in excess of 30 percent for PTSD. The Veteran filed a notice of disagreement in July 1995 and a statement of the case (SOC) was issued in January 1996. The Veteran did not perfect his appeal following the issuance of the January 1996 SOC and the decision became final. 3. In an October 1999 rating determination, the RO assigned a temporary total disability evaluation for the Veteran's hospital stay for PTSD from November 10, 1998, to December 31, 1998, and a 50 percent disability evaluation for PTSD from January 1, 1999. The Veteran was notified of this decision in November 1999. He did not appeal this decision and it became final. 4. In a November 2000 rating determination, the RO denied an evaluation in excess of 50 percent for PTSD. The Veteran was notified of this decision that same month and did not appeal. Thus, the decision became final. 5. The RO, in a February 2004 rating determination, denied an evaluation in excess of 50 percent for PTSD. The Veteran was notified of this decision in March 2004 and did not appeal. Thus, the decision became final. 6. The date of receipt for the Veteran's request for an increased evaluation for PTSD was April 22, 2005. 7. An increase in PTSD symptomatology was factually ascertainable as of September 8, 2004. CONCLUSION OF LAW The criteria for an effective date of September 8, 2004, for the assignment of a 100 percent disability evaluation for PTSD have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.157, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Earlier Effective Date Assignment of effective dates for increased disability evaluations is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The statute provides, in pertinent part, that: (a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. (b)(2) 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. The pertinent provisions of 38 C.F.R. § 3.400 clarify that the effective date of an increase in compensation will be determined as follows: (o) Except as provided in paragraph (o)(2) of this section and § 3.401(b), date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. (2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o). The Court and the VA General Counsel, have interpreted the laws and regulations pertaining to the effective date of an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12- 98 (1998). A review of the record reveals that the RO granted service connection for PTSD and assigned a 30 percent disability evaluation in February 1994. The Veteran was notified of this decision in March 1994. He did not appeal the decision within the one year period and the decision became final. 38 C.F.R. § 20.302(a). In a March 1995 rating determination, the RO denied an evaluation in excess of 30 percent for PTSD. The Veteran filed a notice of disagreement in July 1995 and an SOC was issued in January 1996. The Veteran did not perfect his appeal following the issuance of the January 1996 statement of the case and the decision became final. 38 C.F.R. § 20.302(b). In March 1998, the Veteran requested that his claim be reopened and that an increased evaluation be assigned for his PTSD. In a September 1998 rating determination, the RO denied an increased evaluation for PTSD. In a November 1998 statement in support of claim, the Veteran indicated that he had not been notified of the scheduled VA examination. The Veteran was afforded the requested VA examination in November 1998. In a January 1999 rating determination, the RO denied an evaluation in excess of 30 percent for the Veteran's PTSD. In an August 1999 statement in support of claim, the Veteran requested that he be afforded a temporary total disability evaluation for a period of hospitalization from November 10, 1998, through December 7, 1998. In an October 1999 rating determination, the RO assigned a temporary total disability evaluation for the Veteran's hospital stay from November 10, 1998, to December 31, 1998, and a 50 percent disability evaluation for PTSD from January 1, 1999. The Veteran was notified of this decision in November 1999. He did not appeal this decision and it became final. Following a November 2000 VA examination, the RO, in a November 2000 rating determination, denied an evaluation in excess of 50 percent for the Veteran's PTSD. The Veteran was notified of this decision that same month and did not appeal. Thus, the decision became final. 38 C.F.R. § 20.302(a). No further correspondence with regard to a claim for an increased evaluation for PTSD was received from the Veteran until October 2003 when he requested a permanent and total disability evaluation. Following an October 2003 VA examination, the RO, in a February 2004 rating determination, denied an evaluation in excess of 50 percent for PTSD. The Veteran was notified of this decision in March 2004 and did not appeal. Thus, the decision became final. Id. With regard to an increased evaluation for PTSD, the Board notes Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). A 70 percent evaluation is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent evaluation is assigned 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 of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Global Assessment of Function (GAF) is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM), 32 (4th ed.) (1994) (DSM IV); 38 C.F.R. §§ 4.125, 4.130 (2010). GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). A GAF score of between 31 and 40 contemplates some impairment in reality testing or communication (e.g., speech at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995).that Pursuant to the Court Order, the Board notes that the claim has been pending since the October 2005 rating determination as the Court has viewed the Veteran's July 2006 statement as a notice of disagreement with the November 2005 rating determination, despite the Veteran's specific reference to the April 2006 rating determination. Thus, the controlling time period is the time period within one year of the Veteran's claim for an increased evaluation filed in April 2005. In the April 2005 statement in support of claim, the Veteran requested an increased evaluation for his PTSD noting that his GAF score was now 43. In support of his claim, the Veteran submitted an April 2005 VA outpatient treatment record showing a diagnosis of chronic PTSD with a GAF score of 43 being assigned. Treatment records obtained in conjunction with the Veteran's claim reveal that in June 2004, the Veteran simply reported anxiety and irritability to VA treatment providers. He was neatly dressed and groomed. The Veteran was oriented in all spheres. His thought process was logical and goal directed. Associations were intact. There were no delusions, hallucinations, suicidal ideation, or homicidal ideation. Insight was fair and judgment was intact. The examiner noted the Veteran was experiencing an exacerbation likely to the stressor of cancer. However, by September 8, 2004, the Veteran reported ongoing nightmares and hallucinations. He also noted that he was very anxious and irritable. He reported thinking about killing some dogs that ate his chickens. Mental status examination performed at that time revealed he was neatly dressed and groomed. He was cooperative and his psychomotor movement was normal. The Veteran was alert and oriented times three and his speech was of normal rate, tone, and volume. His affect was constricted and his mood was irritable. Thought processes were logical, goal directed, and concrete. Associations were intact. The Veteran did not have delusions or hallucinations. There were no suicidal or homicidal ideas. Insight was fair and judgment was intact. It was the examiner's assessment that the Veteran had PTSD with marked irritability and severe nocturnal re-experience symptoms. At the time of an April 12, 2005, visit, the Veteran reported having very poor sleep. He stated that he was often up two to three times per night. He was awakened by nightmares and had combat flashbacks when lying awake. The Veteran noted seeing shadows out of the corner of his eye. He remained hypervigilant and irritable. He was frequently angry at his ex-wife and was avoidant of socialization outside his home. Mental status examination revealed he was neatly dressed and groomed, but he appeared very fatigued. He was cooperative and psychomotor movement was normal. He was alert and oriented times three and his speech had a normal rate, tone, and volume. His affect was constricted and his mood was irritable and anxious. Thought process was concrete and associations were intact. He had no delusions or hallucinations and no suicidal or homicidal ideation. Insight was limited but judgment was intact. The examiner diagnosed the Veteran as having PTSD and assigned a GAF score of 43. His PTSD problems were severe hyperarousal and ongoing reexperiencing. At the time of a May 2005 VA examination, the Veteran reported having a lot of dreams and a lot of setbacks. He stated that he had difficulty maintaining his sleep. Without medication he slept only two hours and with medication he slept only 4 to 6 hours. He reported almost nightly nightmares. He stated that when he had flashbacks he would wake up anxious and sweating. The Veteran noted frequently seeing rats and spiders out of the corner of his eye. The Veteran indicated that he avoided crowds and preferred to stay at home. He typically felt anxious and unsafe. He noted that he did not like to have anyone behind him and had to go out of the house with someone he knew. He also did not like being around Asians or Hispanics. He had problems with anger control and emotional blunting. He also reported startle to noise and movement. The Veteran indicated that his first four marriages had ended in divorce and stated that he had been married to his last wife for four or five years. He reported that they had an adequate relationship. Mental status examination revealed that the Veteran was alert and oriented to time, person, and place. Insight was adequate but affect was blunted. Response latencies were normal. The Veteran demonstrated adequate attention and was not distractible. During the examination, the Veteran did not demonstrate perseveration, imitation/utilization behavior or difficulty achieving or maintaining task sets. Spontaneous speech was fluent, grammatic, and free of paraphasia. Immediate, recent, and remote memories were within normal limits. Level of intellect was estimated to be in the low average to average range. During the examination, the Veteran was logical and goal directed. He reported moderate dysphoria, frequent crying, anergia, and anhedonia. The Veteran noted having suicidal ideation constantly. He indicated that it was always on his mind. He stated that he would not act on it and did not have a plan. He denied homicidal ideation. There was no evidence of thought disorder in thought process or content. He made good eye contact and there was no pressured speech or grandiosity noted. There was also no motor activity or restlessness. The Veteran did not have any tics or motor behaviors. The examiner rendered a diagnosis of moderate, chronic, PTSD, and assigned a GAF score of 45. The examiner noted that the Veteran continued to demonstrate symptoms consistent with PTSD related to his experiences in Vietnam. He was also noted to show mood disturbance, which was related to his PTSD. The examiner stated that while not having the Veteran's claims folder for review, it was his opinion that the Veteran had a severe degree of impairment in social functioning and a moderate to severe degree of impairment in occupational functioning with an overall level of severe disability. At the time of a July 2005 visit, the Veteran reported ongoing marital stress (separated from his wife the day before and planned to divorce). He was a little less anxious but his concentration was poor. He had some nightmares of rats and snakes and increased awakenings. The Veteran also had a slight increase with regard to thoughts of war. There were no homicidal or suicidal ideations. Mental status examination revealed he was neatly dressed and groomed and cooperative. His psychomotor movement was normal. The Veteran was alert and oriented times three and his speech had a normal rate, tone, and volume. His affect was constricted and his mood was anxious and irritable. Thought processes were logical and concrete. Associations were intact. The Veteran was preoccupied with his marriage and separation. There were no suicidal or homicidal ideas and insight was fair while judgment was intact. The examiner rendered a diagnosis of PTSD and assigned a GAF score of 45. At the time of a September 2005 visit, the Veteran was again diagnosed as having PTSD with a GAF score of 45 being assigned. At the time of a February 2006 VA examination, the Veteran reported having flashbacks two times per week and nightmares two to three times per week. The nightmares consisted of killing people. He noted that he became so irritated with his stepdaughter that he thought he would hurt her. He ended up calling the police and they told his stepdaughter to leave. He noted never having harmed anyone in the past but stated that his level of irritation was beginning to concern him. He indicated that he was extremely withdrawn and isolated from others. The Veteran reported that he would leave his home and go and live in a tent for a few weeks. He also noted staying with his brother-in-law for weeks at a time. The Veteran had difficulty forming and maintaining relationships. He also noted significant difficulty with memory and concentration. Mental status examination revealed he was dressed in dirty clothes and poorly groomed. He was agitated during the evaluation and felt like he was being taken advantage of by VA. His speech was clear, coherent, and goal-directed. He was alert and oriented to time, place, and person. His affect was angry and his mood was described as irritated. He denied suicidal or homicidal ideation and his thought process was linear and devoid of delusional content. His short and long term memory were adequate as were his concentration and attention. There was no evidence of any perceptual or thought disturbances. The examiner rendered a diagnosis of PTSD. She assigned a GAF score of 45. The examiner noted that the Veteran continued to meet the criteria for PTSD. She stated that the symptoms were resulting in severe level of impairment in industrial and occupational functioning. The Veteran has been unemployed at all times during the course of this appeal. He has been assigned GAF scores that denote an inability to maintain employment. GAF scores between 41-50 have been assigned throughout the course of this appeal. As noted above, such scores contemplate serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). The Veteran did not have total social impairment inasmuch as he remained married to his wife during the time period in question. However, that relationship was noted to be strained and the Veteran was in the process of seeking a divorce. The Board further observes that the Veteran was noted to have been married four times. He also reported being socially isolated. Thus, for the time period from September 8, 2004 forward, and not before, his symptoms approximate total social and occupational impairment. 38 C.F.R. § 4.7, 4.21 (2010). The criteria for a 100 percent rating were met from September 8, 2004, the date which it was factually ascertainable that the Veteran met the criteria for a 100 percent disability evaluation. The Board notes that in the October 2010 Memorandum decision vacating the Board's December 2008 decision, the Court indicated that the record supported the Veteran's argument that the Board erred in not addressing whether the time to appeal the 1994, 1996, 1999, 2000, 2004, and 2005 rating decisions should have been equitably tolled. See Hunt v. Nicholson, 20 Vet. App. 519, 524-25 (1996) (deadline for filing an appeal is subject to equitable tolling). It noted that at a Board hearing, the Veteran testified that he was misled by a VA employee into not filing an appeal to the earlier RO decisions because the employee told him not to do so until he was awarded the 100 percent disability rating. The Court observed that the Board's decision did not discuss the credibility and probative weight of this evidence nor did it explain why it did not raise the issue of equitable tolling. See Beverly v. Nicholson, 19 Vet. App. 394 (2005) (Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant's substantive appeal, including all documents and oral testimony in the record prior to the Board's decision). The Court indicated that remand was warranted. The Court further observed that although the Veteran contended that equitable tolling was appropriate because his service-connected PTSD caused him to miss his appeal deadline, the record did not reflect whether VA was aware of this issue or whether he raised it to the Board. The Court noted that on remand, the Veteran could present and the Board had to consider any additional evidence and argument in support of the matter remanded. The Board notes that the Veteran did not submit any additional evidence in support of his claim. The Veteran's representative, in his March 2011 written argument, noted the Court decision and requested that the Board comply with the Court decision. In the present case, the Court, the Veteran's representative, and VA's General Counsel all recognize application of this doctrine is not absolute and required in every instance. The application of equitable tolling within the context of Veterans law stems from Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S. Ct. 453, 112 L.Ed.2d 435 (1990), wherein the Supreme Court held that equitable tolling may be applied to toll a statute of limitations "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." The Supreme Court held that there is a rebuttable presumption that all federal statutes of limitations contain an implied equitable tolling provision. Id. But as it applies to the governing statute in this case, 38 U.S.C.A. § 5110, Andrews (Holly) v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003) held that equitable tolling, which may be applied to a statute of limitations, does not apply to section 5110 as it does not contain a statute of limitations but merely prescribes when benefits may begin and provides for an earlier effective date under certain limited circumstances. The following year Barrett v. Principi, 363 F.3d 1316 (C.A.Fed. 2004) expanded equitable tolling to apply not only where the claimant has been "induced or tricked by his adversary's misconduct" but also where his or her "failure to file was the direct result of a mental illness that rendered him or her incapable of 'rational thought or deliberate decision making.'" As Barrett dealt with the statute of limitation for filing appeals to the Board under 38 U.S.C.A. § 7266, it did not reverse Andrews on the point that the effective dates prescribed by 38 U.S.C.A. § 5110 are not statutes of limitation. Therefore, the controlling case law, Andrews (Holly) v. Principi, 351 F.3d 1134 (Fed. Cir. 2003), is that equitable tolling does not apply to 38 U.S.C.A. § 5110. As the effective date established for the Veteran's PTSD was based on § 5110, the Board must continue to deny the appeal even with this additional consideration. In fact, another more recent decision of the Federal Circuit Court also addressed this issue, cited to Andrews as still good law, and similarly concluded that equitable tolling is not an available remedy to an appellant under § 5110. See Butler v. Shinseki, 603 F.3d 922 (Fed. Cir. 2010) (per curiam). The statute as written does not create a remedy for failure to comply, even in sympathetic circumstances, and the case law mentioned (the holdings in Andrews and Butler) does not carve out an equitable remedy or exception. The Board may not go beyond the factual evidence presented in this case to provide a favorable determination. The Board does not have authority to grant benefits simply because it might perceive the result to be equitable. 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). As an alternative, the appellant may specifically request equitable relief pursuant to 38 U.S.C.A. § 503. However, such an application must be made separately from the issue currently on appeal. A grant of equitable relief is solely within the discretion of the Secretary of VA and is not within the Board's jurisdiction. See Darrow v. Derwinski, 2 Vet. App. 303 (1992). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The courts have held that where the underlying claim has been granted and there is disagreement as to downstream questions, the claim has been substantiated and there is no need to provide additional VCAA notice nor is there prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The issue in this appeal arises from the Veteran's disagreement with the effective date established for the assignment of a 100 percent disability evaluation for PTSD. The courts' reasoning in Hartman and Dunlap leads to the conclusion that further VCAA notice is not required in this case. VA has complied with its duty to assist the Veteran with the development of his claim under the VCAA by obtaining all pertinent records. ORDER An effective date of September 8, 2004, for a 100 percent disability evaluation for PTSD is granted subject to the controlling regulations governing monetary awards. ____________________________________________ K. L. WALLIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs