Citation Nr: 1136282 Decision Date: 09/27/11 Archive Date: 10/03/11 DOCKET NO. 05-15 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an effective date prior to December 23, 2003, for the award of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial evaluation in excess of 30 percent for service-connected PTSD. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Kenneth Carpenter, Attorney at Law ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The Veteran had active military service from December 1966 to December 1969 and from September 1970 to September 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal of March 2008 and March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Procedural History In an April 2004 rating decision, the RO denied the Veteran's application to reopen a claim for service connection for PTSD, because no new and material evidence had been received. The Veteran appealed the denial of his claim. In a February 2007 decision, Board determined the Veteran had submitted new and material evidence, and reopened his claim of service connection for PTSD. The Board then remanded the Veteran's claim for additional development. In the March 2008 rating decision currently on appeal, the RO awarded service connection for PTSD and assigned an initial evaluation of 30 percent, effective December 23, 2003. The Veteran then appealed the assigned evaluation and effective date. Additionally the Veteran claimed that he can no longer work due to his service-connected disability. He was denied TDIU by the RO in a March 2009 rating decision. The issues of entitlement to an initial evaluation in excess of 30 percent for service-connected PTSD 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. A November 1997 rating decision denied the Veteran's application to reopen a claim of service connection for PTSD. The Veteran was notified of this decision in November 1997, but did not complete an appeal of this decision. 2. VA received the Veteran's application to reopen a claim of service connection for PTSD on December 23, 2003. 3. Neither a formal nor informal claim, by the Veteran or his representative, for entitlement to service connection for PTSD was received between the November 1997 rating decision and December 23, 2003, which might indicate intent to submit an application to reopen his claim for service connection for PTSD. 4. Service connection for PTSD was awarded, in part, based on service department records that had not been associated with the claims file at the time of the original denial of service connection due to the Veteran's failure to provide VA sufficient information to identify and obtain these records. CONCLUSION OF LAW The criteria for an effective date prior to December 23, 2003, for the award service connection for PTSD have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156, 3.400(r), 20.1103 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). 38 C.F.R. § 3.159 (2010). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the Veteran's claim for an earlier effective date is a "downstream" issue in that it arose from the initial grant of service connection. Where service connection has been granted and the initial rating and effective date have been assigned, the claim of service connection has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, because the purpose that the notice was intended to serve has been fulfilled. Once an appellant disagrees with an initial determination, other provisions apply to the remainder of the adjudicative process, particularly those pertaining to the duty to assist and issuance of rating decisions and statements of the case. See 38 U.S.C.A. §§ 5103A, 7105(d) (West 2002); 38 C.F.R. §§ 3.159(c), 19.29 (2010); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In the instant case, February 2004 and March 2006 VCAA letters advised the Veteran of the evidence and information required to substantiate the claim on appeal. In this regard, the Board observes the March 2006 notice letter informed the Veteran that that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded, and advised him on how each are determined. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2010). Service treatment records are associated with claims file. All post-service VA treatment records identified by the Veteran have also been obtained and associated with the claims file. The Veteran has not identified any additional records pertaining to the issues on appeal. Therefore, VA's duty to assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2010); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis The Veteran seeks entitlement to an effective date prior to December 23, 2003, for the award of service connection for PTSD. The Veteran contends that he first filed his claim for service connection for PTSD on July 16, 1996, and he should be entitled to an effective date from the date when he first filed his claim. Generally, 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 thereof. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The law provides that when service connection is granted based on a claim which has been finally denied and subsequently reopened by the submission of new and material evidence, the effective date is the date of VA receipt of the new claim, or the day entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q),(r); Sears v. Principi, 16 Vet.App. 244 (2002), aff'd 349 F3d 1225 (2003). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication indicating intent to apply for one or more benefits. The benefit being sought must be identified. 38 C.F.R. § 3.155. An informal claim must also be in writing. Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); see also Szemraj v. Principi, 357 F.3d 1370 (2004) (defining when the "identification" requirement of 38 C.F.R. § 3.155(a) is met); Miguel v. Principi, 15 Fed. App. 857 (2001) (Federal Circuit declined to reverse interpretation in Rodriguez that an informal claim must be written) (non-precedential). VA is required to look to all communications from the appellant, which may be interpreted as applications or claims, formal and informal, for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); See Servello v. Derwinski, 3 Vet. App. 196 (1992). The date of receipt shall be the date on which a claim, information or evidence was received at VA. 38 U.S.C.A. § 101(30); 38 C.F.R. § 3.1(r). Here, the evidence of record shows that the Veteran's claim for service connection for PTSD, has a long procedural history. His original claim for service connection for PTSD was first denied in December 1996. The Veteran was notified this determination and did not appeal. This rating decision is final. The Veteran's claim for service connection for PTSD was again denied in a November 1997 rating decision. It is noted that the Veteran initiated an appeal after the November 1997 rating decision, but he failed to perfect his appeal with a timely substantive appeal. See 38 C.F.R. § 20.302(b). After the November 1997 rating decision, he again sought to reopen his previously denied claim for service connection for PTSD in December 2003. In this case, the Veteran's claim was last finally adjudicated in the RO's November 1997 rating decision. See 38 U.S.C.A. §§ 511(a), 7103; 38 C.F.R. §§ 20.302, 20.1103. The record shows that VA received the Veteran's request to reopen his previously denied claim for service connection for PTSD on December 23, 2003. The record does not reflect that VA received any other statement by the Veteran or his representative received between the November 1997 rating decision and December 23, 2003, which might indicate intent to submit an application to reopen his claim. See 38 C.F.R. § 3.155. The Board acknowledges that after the December 1996 rating decision, VA received a February 1997 statement from the Veteran regarding additional stressor information. The RO treated the Veteran's statement as intent to reopen his previously denied claim, and subsequently adjudicated it as such. As discussed above, the Veteran's claim was again denied in November 1997. Following receipt of a notice of disagreement in June 1998, VA issued a statement of the case on June 15, 1998. VA did not receive another correspondence the Veteran until December 2003, which is well beyond the period to file a timely substantive appeal. See 38 C.F.R. § 20.302(b). In this instance the Board acknowledges that the Veteran's claim was subsequently reopened and granted because new evidence regarding an in-service stressor was obtained, providing the necessary criteria for the grant of service connection for PTSD. The Veteran contends that his service-connected PTSD should be effective from the date of his original claim. After the VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first adjudicated the claim, VA will reconsider the claim notwithstanding the provisions of C.F.R. § 3.156(a). Such records include, but are not limited to: (i) service records that are related to a claimed in-service event, injury or disease regardless of whether such records mention the Veteran by name, as long as the other requirements of this section are met; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. C.F.R. § 3.156(c)(1). However, paragraph 3.156(c)(1) does not apply to records VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center or any other official source. See 38 C.F.R. § 3.156(c)(2). The effective date of an award of service connection based all or in part on the records identified in paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). Here, subsequent to the last final denial in the November 1997 rating decision, the Veteran submitted a statement in May 2006 that provided information regarding two in-service incidents that had not previously been provided. Specifically the Veteran provided information on a February 1968 incident in which four members of the Veteran's unit went missing north of Tuy Hoa and despite a concentrated rescue effort were never found and incidents of rocket and mortar attacks near Nha Trang in June and July 1968. These two stressors were subsequently verified and service connection was granted. The Board finds that the documents used to verify the two stressors constitute relevant official service department records which were not associated with the claims file when VA first decided the claim in December 1996 or again in November 1997. However, the Board also finds that the Veteran had not provided sufficient information at the time of the previous rating decisions to enable VA to obtain these records. In this regard the Board notes that previous statements from the Veteran regarding his claimed in-service stressors did not include either of the previously mentioned events that provided the basis for awarding service connection for PTSD. Previously the Veteran had maintained that his PTSD was related to an event that happened sometime between October 1967 and April 1967 in which the 91st evacuation hospital at Tuy Hoa was ambushed causing injuries and death to 19 soldiers. This claimed stressor was never verified. None of the statements submitted by the Veteran prior to the May 2006 statement contain any mention of the two stressors that were eventually verified. As such, the RO did not have enough information at the time of the previous denials, to obtain records from the JSRRC or another official source to verify any claimed stressor. Therefore, the Board finds that the relevant information could not have been obtained when VA first decided the claim because the Veteran did not provide sufficient information for VA to identify and obtain the appropriate records. See 38 C.F.R. § 3.156(c)(2). Accordingly, the Veteran's service connection claim for PTSD is not entitled to reconsideration under 38 C.F.R. § 3.156. As such, the law and VA regulations concerning this issue are quite clear, as set forth above: the effective date for a grant of service connection after a final disallowance can be no earlier than the date of receipt of the claim to reopen. Since the RO has assigned the date of receipt of the Veteran's application to reopen his claim -December 23, 2003-as the effective date for the grant of service connection, no earlier date may be assigned. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q),(r). For the foregoing reasons, the claim for an effective date prior to December 23, 2003, for the award of service connection for PTSD, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER An effective date prior to December 23, 2003, for the award of service connection for PTSD, is denied. REMAND The Veteran is service-connected for PTSD, currently evaluated as 30 percent disabling. In a March 2008 rating decision, the RO relied on a November 2007 VA psychiatric initial consultation and evaluation report in assigning the Veteran's 30 percent evaluation. However, subsequent January 2011 statements from the Veteran treating psychiatrist and clinical psychologist as well as recent VA treatment reports, note that the Veteran's PTSD has increased in severity. Unfortunately, neither of the two statements nor the VA treatment reports contains the pertinent symptomatology required to allow the Board to adequately rate the disorder. As such a remand is necessary to obtain a new examination to address the current level of severity of the Veteran's PTSD. See VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). Finally, the issue of TDIU, is inextricably intertwined with consideration for a higher evaluation for PTSD. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue)). It cannot be adjudicated without further consideration of the Veteran's increased rating claim. Prior to any examination, the RO/AMC should also ask the Veteran to identify any outstanding records of pertinent VA and private treatment, and obtain those records. Accordingly, the case is REMANDED for the following action: 1. All outstanding St. Louis VAMC treatment records pertaining to any treatment the Veteran received regarding PTSD from November 1,2009 to the present should be obtained and associated with the claims folder. If no additional treatment records are available, such should be noted for the record. By appropriate means, and with any necessary assistance from the Veteran, the RO/AMC should seek to identify and obtain any outstanding records of pertinent medical treatment that are not yet on file. 2. Once all the available records have been associated with the claims folder, the RO/AMC should schedule the Veteran for a VA psychiatric examination to determine the current degree of severity of his PTSD. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should identify the nature, frequency, and severity of all current manifestations of PTSD. The examination report should include a full psychiatric diagnostic assessment including a Global Assessment of Functioning (GAF) score on Axis V and an explanation of the significance of the current levels of psychological, social, and occupational functioning which support the score. The examiner should specifically comment on the impact of the Veteran's PTSD upon his social and industrial activities including his employability. The rationale for all opinions expressed must be provided. 3. Thereafter, the RO/AMC should review the claims file to ensure that all the foregoing requested development is completed, and arrange for any additional development indicated. The RO/AMC should then readjudicate the claim for increased rating on appeal, to include entitlement to TDIU. If any of the benefit sought remains denied, the RO/AMC should issue an appropriate SSOC and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2010). ______________________________________________ CHRISTOPHER MURRAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs