Citation Nr: 1136735 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 10-42 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date of October 30, 1996 for the assignment of a 100 percent disability evaluation for service-connected posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from August 1978 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2010 and August 2010 rating decisions of the Department of Veterans Affairs Regional Office (RO) in Atlanta, Georgia, increasing the Veteran's disability evaluation to 100 percent, effective as of July 25, 2001. The Veteran contends that he is entitled to an effective date prior to July 25, 2001 for the assignment of a 100 percent disability evaluation for his PTSD. For historical purposes, VA received the Veteran's claim seeking an increased disability evaluation in May 2010. In a June 2010 rating decision, the RO increased the Veteran's disability evaluation to 100 percent, effective as of March 24, 2010. VA received a timely notice of disagreement from the Veteran in June 2010, alleging that he was entitled to a 100 percent disability evaluation as of October 30, 1996 - the effective date for the grant of service connection. In an August 2010 rating decision, the RO granted an earlier effective date of July 25, 2001 for the assignment of the 100 percent disability evaluation. In doing so, the RO considered a statement from the Veteran received on March 14, 2008 to be the actual date of his claim. As this was received within one year of a July 2007 rating decision addressing a June 2002 Board remand that phrased the issue as "[w]hat evaluation is warranted for PTSD from October 30, 1996," a 100 percent disability evaluation was granted back to July 25, 2001 - the date the Veteran's physicians concluded that his PTSD resulted in unemployability. The record reflects that on October 30, 1996, the Veteran submitted a claim requesting service connection for "bad nerves." This claim was denied in an August 1997 rating decision, but was later granted in a January 2001 rating decision. A 30 percent disability evaluation was assigned under Diagnostic Code 9411, effective as of October 30, 1996. The Veteran appealed the assigned rating to the Board in August 2001, and in June 2002, the Board remanded this claim back to the RO for further evidentiary development. Upon further development, the RO reduced the Veteran's disability evaluation to 0 percent, effective as of February 8, 2007. The 30 percent disability evaluation was maintained from October 30, 1996 to February 7, 2007. These disability evaluations were later confirmed in a February 2008 supplemental statement of the case. Subsequently, on March 14, 2008, VA received a statement from the Veteran disagreeing with the assigned disability evaluation in effect since October 30, 1996. The record does not reflect that this issue was ever returned to the Board for further appellate action. Nonetheless, the Board finds that further action on the June 2002 Board remand is not necessary, as the decision outlined below fully resolves this issue. The issue of entitlement to an effective date prior to October 30, 1996 for the grant of service connection for PTSD, as well as entitlement to special monthly compensation based on housebound criteria, was raised by the Veteran in his October 2010 Form 9. However, these issues have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. As of October 30, 1996, the Veteran's PTSD has effectively resulted in an inability to obtain or retain effective employment. 2. The Veteran is entitled to an effective date of October 30, 1996 for the assigned 100 percent disability evaluation for his PTSD. CONCLUSION OF LAW An effective date of October 30, 1996 for the assignment of a 100 percent disability evaluation for PTSD is warranted. 38 U.S.C.A. §§ 510(a), 5110, 7105 (West 2002); 38 C.F.R. §§ 3.151(a), 3.400 (2010); 4.130, Diagnostic Code 9411 (1996). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. An exception to this rule provides that the effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application. See Hazan v. Gober, 10 Vet. App. 511 (1997). Generally then, to determine an appropriate effective date for an increased rating, the Board must determine when a claim for an increased rating was received and, if possible, when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 510(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 must identify the benefit sought. 38 C.F.R. § 3.155(a). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. The submission of certain medical records may constitute an informal claim for an increase in disability compensation. 38 C.F.R. § 3.155(a). When considering "informal claims" based on medical records, the "date of claim" will be the date of treatment for VA or uniformed services report of examination, hospitalization, or treatment and the date of receipt for evidence from a private physician, layman, state, or other institution. See 38 C.F.R. §§ 3.155(c); 3.157(b). The record demonstrates that the Veteran's claim has been pending since October 30, 1996. Therefore, the determinative issue in this case is whether the evidence of record demonstrates that the Veteran was entitled to a 100 percent disability evaluation as of October 30, 1996. Relevant Facts The Veteran was afforded a VA examination for his PTSD in April 1999. The Veteran reported that he initially worked as a corrections officer following his separation from active duty until he hit another officer with a radio and tried to shoot him. The Veteran reported that his last job was in February 1996 when he worked in the Marine Corps logistics base. The Veteran indicated that he was unable to work due to problems with his hernia, dizziness and periods of anger. The Veteran noted that he was currently living with a friend. The Veteran reported being depressed from time to time with nightmares and night sweats. He also reported mood swings where he would get very depressed with the possibility of violence. He also noted that he was paranoid from time to time. However, he denied any feelings of worthlessness, guilt, or problems with concentration. He did endorse suicidal ideations, but these were noted to be mostly passive in nature. Also, while he endorsed hallucinations from time to time, he was unable to describe these in detail. Examination revealed the Veteran to be oriented in all spheres with an intact memory. Judgment, insight and concentration were deemed to be fair. The Veteran was diagnosed with dysthymia and polysubstance dependence, in partial remission. It was noted that he did not meet the criteria for a diagnosis of PTSD. His GAF score was found to be 80 at this time. The record also contains a vocational rehabilitation report signed in August 1999. According to this report, the Veteran did not seem particularly enthused or motivated about obtaining any particular type of job. It was noted that money was his only motivation, and given his level of commitment, it was quite possible that the Veteran would not retain any job following placement. The Veteran was afforded another VA psychiatric examination in January 2001. According to the examination report, the Veteran was working as a security guard at nights in the school that he was presently attending. The Veteran reported continued nightmares with one to two panic attacks per week. However, he was still functioning well in school. The Veteran also reported a lack of concentration and short term memory loss. The Veteran indicated that he was more angry and upset. He denied delusions or hallucinations, and current suicidal thoughts. However, he did report suicidal thoughts in the past. The Veteran denied dating or having any close friends, and he reported his only social activity to be going to church with his mother. The examiner diagnosed the Veteran with PTSD and assigned a Global Assessment of Functioning (GAF) score of 55. The Veteran submitted a letter to VA several weeks after the above examination from his college indicating that he did not, nor had he ever, worked for his college. He also submitted a letter from his college instructor dated February 2001 that noted that he was having difficulty in English 101 and that he had failed the first two grammar courses. These letters effectively call into question the January 2001 VA examiner's assertion that the Veteran was employed with this college and that he was performing well in school. The record also contains a letter from the Southern Psychiatry and Psychology Associates dated April 2002. According to this letter, the Veteran had been a patient with them since July 25, 2001. It was noted that he suffered from a severe, disabling PTSD and that it was their recommendation that he be granted Social Security Disability. Relevant Regulations for an Increased Disability Evaluation The Veteran's disability is rated under Diagnostic Code 9411. This code, which pertains to mental disorders, was revised effective November 7, 1996. Since this is an appeal of the initial evaluation assigned, and service connection for the disorder was effective as of October 30, 1996, the Board will consider old and current versions of Diagnostic Code 9411. Specifically, it is noted that by regulatory amendment, effective on November 7, 1996, substantive changes were made to the schedular criteria for evaluating psychiatric disorders, as defined in 38 C.F.R. §§ 4.125-4.132. See 61 Fed. Reg. 52695- 52702 (1996). In this regard, if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3- 2000; see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Amendments with a specified effective date without provision for retroactive application may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. In this case, either the old or revised rating criteria may apply, although the new rating criteria are only applicable since their effective date. VAOPGCPREC 3-2000. Under the version of the rating schedule in effect prior to November 7, 1996, a disability evaluation of 100 percent is warranted where attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior, or the individual is demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.130 (1996). The current version of Diagnostic Code 9411, in effect since November 7, 1996, provides the following ratings for psychiatric disabilities. A 100 percent rating contemplates 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 ability 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 (2010). Analysis Affording the Veteran the full benefit of the doubt, the Board finds that he is entitled to a disability evaluation of 100 percent as of October 30, 1996. Regrettably, the record contains very limited evidence for the period from October 30, 1996 through July 24, 2001. Under the regulations pertaining to PTSD, as they existed prior to November 7, 1996, a 100 percent disability evaluation was warranted if the individual was demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.130 (1996). According to the April 1999 VA examination, the Veteran had not worked since 1996. It was noted that he lost his old job due to his assaulting a fellow co-worker. The Veteran also endorsed occasional hallucinations and passive suicidal ideations. An August 1999 vocational rehabilitation report also indicates that with the Veteran's then existing levels of commitment and motivation, it was quite possible that he would not be able to maintain any job he was placed into. The Board recognizes that the January 2001 VA examiner noted that the Veteran was currently employed at the college he was attending. However, several weeks after this examination, the Veteran submitted a letter from his college establishing that he did not then, nor had he ever, worked for this college. Also, while the evidence suggests that the Veteran was in school in 2001, a letter from his professor demonstrated that he was failing his examinations. A letter from the Southern Psychiatry and Psychology Associates from April 2002 also described the Veteran's PTSD as severe, noting that he had been occupationally disabled since at least July 25, 2001. Therefore, when viewing all of the evidence in a light most favorable to the Veteran, the Board concludes that he is entitled to a 100 percent disability evaluation from October 30, 1996 to July 24, 2001. A 100 percent disability evaluation, as of July 25, 2001, has already been established by the RO. Affording the Veteran the full benefit of the doubt, the Board finds that an initial disability evaluation of 100 percent is warranted. The claim is granted. ORDER An effective date of October 30, 1996 for the assignment of a 100 percent disability evaluation for PTSD is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs