Citation Nr: 1128007 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 09-22 744 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an effective date earlier than June 12, 2008, for the award of a 70 percent evaluation for posttraumatic stress disorder. 2. Entitlement to an effective date earlier than June 12, 2008, for the award of a total rating for compensation based upon individual unemployability. 3. Entitlement to an effective date earlier than June 12, 2008, for the award of Dependents' Educational Assistance. REPRESENTATION Appellant represented by: Brooks S. McDaniel, Agent WITNESSES AT HEARING ON APPEAL Appellant and wife ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. FINDINGS OF FACT 1. In a March 2005 rating decision, the RO continued the 50 percent evaluation for posttraumatic stress disorder and implicitly denied a total rating for compensation based upon individual unemployability. The Veteran was notified of that determination that same month, along with his appeal rights. He did not appeal the decision, and it is final. 2. The next time the Veteran submitted a claim for increase for posttraumatic stress disorder and a total rating for compensation based upon individual unemployability was on June 12, 2008. 3. A May 7, 2008, VA treatment record establishes that the Veteran met the criteria for a 70 percent evaluation for posttraumatic stress disorder and the criteria for a total rating for compensation based upon individual unemployability. 4. Between June 12, 2007, and May 6, 2008, there is a lack of documentation establishing that posttraumatic stress disorder warranted an evaluation in excess of 50 percent or that the Veteran was unable to obtain and sustain gainful employment due to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an effective date of May 7, 2008, but no earlier, for entitlement to a 70 percent evaluation for posttraumatic stress disorder have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2010), 4.130, Diagnostic Code 9411 (2010). 2. The criteria for an effective date of May 7, 2008, but no earlier, for entitlement to a total rating for compensation based upon individual unemployability have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2010). 3. The criteria for an effective date of May 7, 2008, but no earlier, for a grant of entitlement to educational benefits under the provisions of Title 38 of Chapter 35, United States Code, have not been met. 38 U.S.C.A. §§ 3500, 3501, 3510, 3511, 3512, 5107, 5110, 5113 (West 2002); 38 C.F.R. §§ 3.400, 21.3041; 21.4131(d) (1) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. As to the claim for entitlement to an earlier effective date for the award of a 70 percent evaluation for posttraumatic stress disorder, this claim stems from a claim for increase, wherein the RO granted an increased evaluation from 50 percent to 70 percent in the rating decision on appeal. In submitting the notice of disagreement, the Veteran stated that he was appealing only the effective date assigned (meaning he was satisfied with the 70 percent evaluation). See VA Form 21-4138, Statement in Support of Claim, received in March 2009. This means that the notice requirements of 38 U.S.C.A. § 5103(a) have been met since an increased rating was successfully granted. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The RO properly issued a statement of the case in June 2009 addressing the effective-date issue. As to the claim for entitlement to an earlier effective date for the award of a total rating for compensation based upon individual unemployability, this claim stems from the Veteran having submitted an informal claim for entitlement to such benefit, which benefit was awarded in the rating decision on appeal. Like the claim for increase, this means that the notice requirements of 38 U.S.C.A. § 5103(a) have been met since the Veteran's claim was successfully granted. See id. The RO properly issued a statement of the case in June 2009 addressing the effective-date issue. Regarding the duty to assist, VA has obtained VA treatment records and the Social Security Administration records. The Veteran was provided with a video conference before the undersigned Acting Veterans Law Judge. A transcript of that hearing has been associated with the claims file. VA did not provide the Veteran with examinations in connection with the claims for earlier effective dates, as they do not meet the statutory requirements for entitlement to a VA examination or medical opinion. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C) (West 2002); see also 38 C.F.R. § 3.159(c)(4)(A)-(C) (2010). (VA provided the Veteran with an examination in connection with his claims for an increased rating for posttraumatic stress disorder and entitlement to a total rating for compensation based upon individual unemployability.). Additionally, oftentimes with earlier-effective-date claims, the evidence necessary to determine whether an earlier effective date is warranted is already in the claims file. That is the situation with this case. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Analysis The Veteran argues that he warrants effective dates going back to September 2002, when he was awarded Social Security Administration benefits. At the June 2011 Board hearing, the Veteran testified that the Social Security Administration had awarded him disability benefits based upon both physical and mental disabilities. As to the physical disabilities, he stated it was granted based upon chronic obstructive pulmonary disease, chronic heart disease, and degenerative arthritis of the spine and neck. As to the mental disabilities, the Veteran stated that was based upon memory loss and anger issues. The Veteran's representative argued that the date entitlement arose was the date the Veteran had been awarded Social Security Administration benefits. The Veteran claimed that his posttraumatic stress disorder was so chronic and severe that he was told by VA that there was nothing they could do for him. He testified he had seen Dr. S since 2002 and that she told the Veteran that VA could no longer do anything for him except give him drugs, which he estimated occurred in 2009. The Veteran stated he had not worked from 2002 to 2008. The Veteran's wife stated she felt the Veteran's disability had gotten worse since 2002. Governing regulations provide that a decision of a duly constituted rating agency or other agency of original jurisdiction shall be final and binding on all VA field offices as to conclusions based on evidence on file at the time VA issues written notification in accordance with 38 U.S.C.A. § 5104 (West 2002). 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for increase (which includes a claim for total rating for compensation based upon individual unemployability) shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a). The implementing regulation states that the effective date for a claim for increase will be the date of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400. An effective date for a claim for increase may be granted prior to the date of claim if it is ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C.A. §§ 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2) (2010); see Harper v. Brown, 10 Vet. App. 125, 126 (1997). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initially, the Board notes that it finds the Veteran's statements and testimony to have credibility issues. At the June 2011 hearing, the Veteran alleged that VA had told him there was nothing more it could do for him in connection with posttraumatic stress disorder except give him medication. The implication was that posttraumatic stress disorder was so severe, VA was unable to help the Veteran. The Board finds such statement not credible, as the VA treatment records reflect an attempt by VA to treat the Veteran for posttraumatic stress disorder, and the Veteran's unwillingness to be treated by VA. See May 2008 VA treatment record ("Does not like to come to VA because he says it is 'useless'" and encouraged son coming back from Iraq not to receive services from VA); December 2003 VA treatment record (examiner noted the Veteran continued to deny psychotherapy); July 2000 VA treatment record ("Declines referral to [mental health clinic and] is advised to notify us if he changes his mind [about mental health clinic] referral."). While it would be unlikely that an examiner would have documented telling the Veteran that there was nothing more VA could do for him, it is also unlikely that an examiner would state such to a patient involving a psychiatric disorder. Additionally, in reading through the VA treatment records around 2002, the Veteran's posttraumatic stress disorder symptoms are not shown to be severe. For example, in April 2002, the Veteran reported depression following the September 2001 attacks (he was at VA for treatment of back pain (he had thrown out his back in October 2001) and not treatment for psychiatric symptoms). He was asked if he was being treated for depression or dysthymia, and he stated no. He was asked if he felt depressed or sad "much of the time in the past year," and the answer was no. He was seen the following month, and the Veteran reported he was not depressed anymore. The 2002 VA treatment records show complaints relating to physical symptoms (skin, rectal pain and bleeding, low back pain, and breathing problems) and not psychiatric symptoms. In other words, the Veteran was not reporting increased symptomatology due to posttraumatic stress disorder. Additionally, in the Veteran's application for Social Security Administration disability benefits, his larger complaints revolve around the physical disabilities. For example, in an undated statement he wrote he would address his disabilities of posttraumatic stress disorder, degenerative arthralgia of the spine, muscle spasm, acid reflux and shingles. In addressing posttraumatic stress disorder, the Veteran stated, "I control my flash[]backs as good as I can." See Form SSA-3368-BK at Section 9 on page 9. When addressing his low back pain, he stated, "This is the worst pain that I believe anyone can have." Id. When addressing the acid reflux, he stated it felt like a heart attack. Id. When addressing the shingles, the Veteran said the pain involved was "as painful as my spine problem[,] if not more painful." Id. When he was asked how his illnesses limited his ability the work, the Veteran stated he was in constant pain and that lifting and straining caused "extreme pain" and that he could not concentrate. Id. at Section 2 on page 2. He stated he stopped working because of severe pain and that he had quit a lot of jobs and had been fired from jobs because of pain. Thus, in reading the Social Security Administration application, one would not have gotten the impression that the Veteran's psychiatric disorder or psychiatric symptoms was the main cause of his inability to work at that time. Thus, the Veteran's allegations that his posttraumatic stress disorder symptoms have been so severe as to cause him to be unable to work back in September 2002 are undermined by the contemporaneous records from that time period, which show the Veteran was alleging it was mainly physical disabilities that had caused him to be unable to work. See October 2003 VA treatment record ("Has been declared disabled by state secondary to back pain."); May 2004 VA treatment record ("[D]isabled by state due to back pain."). In the May 2003 Social Security Administration document showing benefits were granted as of September 2002, it shows the two primary disabilities as discogenic/degenerative back disorder and chronic pulmonary insufficiency. In an April 2003 examination conducted in connection with the claim for Social Security benefits, the examiner stated the Veteran had no communicative limitation and that his "mental status is normal." See also April 2003 VA treatment record ("The patient reports no feelings of depression or hopelessness. Has not been bothered by lack of interest or loss of pleasure in doing things."). Interestingly, the Veteran reported to the Social Security Administration that he had quit jobs and been fired from job because of pain, but in connection with his claims for increased benefits with VA, he claimed he quit jobs and had been fired from jobs because of his psychiatric symptoms. See July 2008 VA examination report. It appears that the Veteran changes the facts based upon what disability(ies) for which he seeks monetary benefits. The above facts damage the Veteran's credibility and negatively impact the probative value of his current statements in connection with the appeal. The Board has carefully reviewed the evidence of record and finds that the evidence supports the award of an effective date of May 7, 2008, for the award of (1) a 70 percent evaluation for posttraumatic stress disorder; (2) a total rating for compensation based upon individual unemployability; and (3) Dependents' Educational Assistance benefits. The Board will address each benefit separately. 70 percent evaluation for posttraumatic stress disorder Under 38 C.F.R. § 4.130, Diagnostic Code 9411, the criteria for a 70 percent evaluation are as follows: 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. The Veteran's allegation that the 70 percent evaluation should go back to 2002 is legally precluded. In a March 2005 rating decision, the RO continued the 50 percent evaluation for posttraumatic stress disorder and denied entitlement to a 70 percent evaluation. He was notified of this determination in a March 2005 letter, which informed the Veteran that he could appeal the decision. See March 30, 2005, letter. The Veteran did not appeal the decision. Thus, the March 2005 rating decision is final, see 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103, and is a legal bar to an effective date going back to September 2002 for the 70 percent evaluation. The Veteran next submitted a claim for increase on June 12, 2008. See VA Form 21-4138. This is the first claim for increase received after the March 2005 rating decision. Thus, in this case, the date of claim is June 12, 2008. The earliest effective date in a claim for increase can be up to one year prior to June 12, 2008, if it is factually ascertainable that an increase in the service-connected disability was shown during that time period. The Board has thoroughly reviewed the VA treatment records dated within one year prior to the June 12, 2008, claim for increase, and finds that a May 7, 2008, treatment record reasonably establishes that the Veteran met the criteria for a 70 percent evaluation. At that time, the examiner noted the Veteran had positive homicidal thoughts with the government, including VA. The Veteran also reported to the examiner that he had learned that it was best to stay home and away from people. Overall, the Veteran seemed to show increased symptomatology. Supporting this finding is the fact that VA requested to follow up with the Veteran so that it could gain more information about the Veteran's situation and what he was willing to do to help himself and to function better in his family. In other words, the examiner was concerned about the Veteran's homicidal thoughts and wanted to check the Veteran's status in one month. The follow-up appointment was on June 10, 2008-two days prior to the Veteran's informal claim for increase, received on June 12, 2008. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the May 7, 2008, VA treatment record established a factually ascertainable date that the service-connected posttraumatic stress disorder worsened to meet the 70 percent evaluation. The Board has reviewed the VA treatment records dated prior to May 7, 2008, and finds there are no facts upon which to establish a basis for an earlier effective date. When the Veteran was seen in May 2008, the examiner noted he had last seen the Veteran in August 2006. The August 2006 is the last VA treatment record before the May 7, 2008, VA treatment record. Thus, there is a lack of documented evidence between June 2007 and May 2008, and an effective date earlier than May 7, 2008, for the 70 percent evaluation for posttraumatic stress disorder is denied. As stated above, the Veteran is legally barred from getting an effective date earlier than March 2005. Even accepting that the Veteran's symptoms continued to worsen soon after March 2005, it does not establish a basis to award an effective date earlier than May 7, 2008. The Court and VA's General Counsel have interpreted the provisions of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 as meaning that 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. 38 U.S.C.A. § 5110(b)(2); Harper, 10 Vet. App. at 126-27; 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 ((Sept. 23, 1998). Thus, even if the Board accepted that the Veteran's posttraumatic stress disorder worsened in the latter part of 2005, a claim for increase was not received until 2008. Thus, the effective date is in 2008. Total rating for compensation based upon individual unemployability In cases where the schedular rating is less than 100 percent, a total disability rating may be assigned when the individual is unable to secure or follow a substantially gainful occupation as the result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010). A total rating for compensation based upon individual unemployability may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The 60 percent evaluation may be met when the veteran's disabilities are from common etiology. Id. at (a)(2). When an RO is considering a rating increase claim from a claimant whose schedular rating meets the minimum criteria of section 4.16(a) and there is evidence of current service-connected unemployability in the claimant's claims file or under VA control, evaluation of that rating increase must also include an evaluation of a reasonably-raised claim for a total rating for compensation based upon individual unemployability, and VA is required to adjudicate that claim. Norris v. West, 12 Vet. App. 413, 418 (1999); see also Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Prior to May 2008, the Veteran did not meet the schedular criteria for a total rating for compensation based upon individual unemployability under 38 C.F.R. § 4.16(a) (the date that the Veteran has been awarded a 70 percent disability evaluation). Regardless, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In cases where the schedular criteria are not met, an extraschedular rating is for consideration. 38 C.F.R. § 3.321. The Veteran's allegation that the total rating for compensation based upon individual unemployability should go back to 2002 is legally precluded. The Board finds that in denying the 70 percent evaluation in the March 2005 rating decision, the RO implicitly denied a claim for a total rating for compensation based upon individual unemployability. The "implicit denial" rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if VA did not expressly address that claim in its decision. See Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006). In September 2004, the Veteran submitted an informal claim for increase for posttraumatic stress disorder. See VA Form 21-4138, Statement in Support of Claim. Based on the Board's review of the evidence, it finds that a claim for entitlement to individual unemployability due to service-connected disability was reasonably raised by the Veteran at the October 2004 VA examination. There, the Veteran reported he had not worked in a year due to multiple disabilities, which included his psychiatric symptoms, such as irritability, anger, and poor concentration. While he did not attribute his inability to work solely to posttraumatic stress disorder or its symptoms, the Board will construe the Veteran's statement in the light most favorable to the Veteran. In the March 2005 rating decision, the RO stated that the reason it was not granting a 70 percent evaluation was because the Veteran did not meet the criteria for the 70 percent evaluation for posttraumatic stress disorder. The RO laid out both the former criteria for posttraumatic stress disorder (the criteria changed in 1996) and the current criteria. The former criteria for a 70 percent evaluation for posttraumatic stress disorder included a finding of "severe impairment in the ability to obtain and retain employment." See 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). In determining that the Veteran did not meet the criteria for the 70 percent evaluation, the RO was essentially stating the evidence did not establish severe impairment in the ability to obtain or retain employment. The RO sent the Veteran a copy of the rating decision, which informed the Veteran that he did not meet the specific criteria for a 70 percent evaluation under both the former and the amended criteria. The Board is aware that the former criteria did not apply at that time since the claim for increase was submitted in 2004; however, the RO's consideration of that criteria did not prejudice the Veteran, as the RO determined the Veteran did not meet the 70 percent evaluation under the amended criteria as well. Thus, in reading the March 2005 rating decision, a reasonable person in reading through the reasons for why a 70 percent evaluation was not warranted would have construed that a claim for a total rating for compensation based upon individual unemployability was denied, since VA told the Veteran that he did not show severe impairment in the in the ability to obtain and retain employment. In other words, a reasonable person would read that to mean that VA found that he could work. See Ingram v. Nicholson, 21 Vet. App. 232, 255 (2007) (When RO decision "discusses a claim in terms sufficient to put the claimant on notice that it was being considered and rejected, then it constitutes a denial of that claim even if the formal adjudicative language does not 'specifically' deny that claim."); see also Deshotel, 457 F.3d at 1261 ("Where the Veteran files more than one claim with the RO at the same time, and the RO's decision acts (favorably or unfavorably) on one of the claims, but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run."). Therefore, the Board finds as fact that the appeal period for the denial of a total rating for compensation based upon individual unemployability began at that time. The Veteran did not appeal the March 2005 decision. Thus, it is final, see 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103 (2010), and is a legal bar to an effective date going back to September 2002 for individual unemployability. The claim for increase, to include individual unemployability, was received on June 12, 2008. Based on the Board's award of an effective date of May 7, 2008, for the 70 percent evaluation for posttraumatic stress disorder, the Board finds that such date established that the Veteran was unable to obtain and sustain gainful employment. Thus, an effective date of May 7, 2008, for the award of a total rating for compensation based upon individual unemployability is granted. There is a lack of facts within one year of the June 2008 informal claim upon which to base an award for an effective date earlier than May 7, 2008, for the same reasons that the Board found the evidence did not establish an earlier effective date for the award of the 70 percent evaluation for posttraumatic stress disorder. Accordingly, for all the reasons stated above, the Board finds that the evidence supports the award of an effective date of May 7, 2008, for the award of a total rating for compensation based upon individual unemployability but that the preponderance of the evidence is against an effective date earlier than May 7, 2008, for this benefit. The benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107. Dependents' Educational Assistance For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C.A. §§ 3501, 3510 (West 2002); 38 C.F.R. §§ 3.807(a), 21.3021 (2010). Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C.A. § 5113 (West 2002). Based on the foregoing, the RO determined that the Veteran had a permanent total service-connected disability when it granted a 70 percent evaluation for posttraumatic stress disorder, effective June 12, 2008. Because the Board has granted an earlier effective date of May 7, 2008, for the award of the 70 percent evaluation, it finds that the award of Dependents' Educational Assistance benefits should also be as of that date. Although the Veteran asserts that he is entitled to an earlier effective date for Chapter 35 educational assistance, the regulatory criteria and legal precedent governing eligibility for the receipt of such benefits are clear and specific. The Board is bound by these criteria. 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER Entitlement an effective date of May 7, 2008, for the award of a 70 percent evaluation for posttraumatic stress disorder is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to an effective date of May 7, 2008, for the award of a total rating for compensation based upon individual unemployability is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to an effective date earlier than May 7, 2008, for the award of Dependents' Educational Assistance is granted, subject to the controlling regulations applicable to the payment of monetary benefits. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs