Citation Nr: 1105751 Decision Date: 02/11/11 Archive Date: 02/18/11 DOCKET NO. 09-40 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than October 24, 2007, for a grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: T. Edmund Spinks, Attorney ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1964 to July 1965. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for PTSD and assigned a 30 percent rating, effective October 24, 2007. In an October 2009 substantive appeal, the Veteran requested a hearing before the Board. He subsequently withdrew his hearing request in written statements dated in October 2010 and December 2010. 38 C.F.R. § 20.704 (2010). Therefore, the Board will proceed with adjudication of this appeal. As a preliminary matter, the Board notes that the Veteran has used the phrase "clear and unmistakable error" in communications with his congressman. A review of the record shows that, although the Veteran uses the term clear and unmistakable error (CUE), he has not raised an error of fact or law requiring revision in an earlier final decision. Rather, his claim appears to be that the clear and unmistakable error was that the military failed to inform him of his psychiatric disorder, or alternatively, to properly diagnose his psychiatric disorder, at the time of his separation from service. Actions by the military would not constitute CUE in any VA decision. Accordingly, no remand or referral to address a claim of CUE is necessary. The issues of entitlement to an initial rating in excess of 30 percent for PTSD and entitlement to TDIU are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. An October 1980 rating decision denied service connection for emotional instability, called a personality disorder. The Veteran did not file a timely appeal and the decision became final. 2. An April 2004 rating decision declined to reopen a claim for service connection for a psychiatric disorder, claimed as schizoid personality disorder, based on lack of new and material evidence. The Veteran did not timely appeal and the decision became final. 3. On October 24, 2007, VA received a new application to reopen a claim for service connection for a psychiatric disorder, claimed as schizotypal personality disorder. 4. An October 2009 rating decision granted service connection for PTSD effective October 24, 2007. CONCLUSIONS OF LAW 1. The April 2004 rating decision which declined to reopen a claim for service connection for a psychiatric disorder is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2010). 2. The criteria for an effective date earlier than October 24, 2007, for the grant of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he is entitled to an effective date earlier than October 24, 2007 for a grant of service connection for PTSD. Specifically, the Veteran asserts that he is entitled to an effective date as early as October 1995, when he was determined to be disabled for the purposes of nonservice- connected pension benefits. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 C.F.R. § 3.156 (2010). Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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 the later. 38 U.S.C.A. §5110(a) (West 2002); 38 C.F.R. § 3.400 (2010). The effective date for claims based on new and material evidence received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2) (2010). A review of the record shows that the Veteran was initially denied service connection for a psychiatric disorder, claimed as emotional instability, by an October 1980 rating decision. The Veteran did not appeal that decision and it became final. Thereafter, the Veteran made several unsuccessful attempts to reopen his claim. The RO declined to reopen a claim for service connection for a psychiatric condition in December 1992, January 1996, July 1996, and December 1996. In May 1997, the Veteran filed a notice of disagreement with respect to the December 1996 decision, and a statement of the case was issued in October 1997. However, the Veteran did not perfect an appeal and the decision became final. In January 1999, the Veteran again filed a petition to reopen a claim for service connection for a psychiatric condition, claimed as a nervous condition or schizophrenia. In March 1999, the RO determined that new and material evidence had not been submitted and declined to reopen the Veteran's claim. In April 1999, the Veteran's Congressman forwarded a statement from the Veteran expressing his desire to appeal the denial. That communication constituted a valid notice of disagreement. 38 C.F.R. §20.201 (2010). However, a statement of the case was never issued and the claim remained pending. Manlincon v. West, 12, Vet. App. 238 (1999) Thereafter, in December 2003, the Veteran filed a petition to reopen a claim for service connection for a psychiatric condition, claimed as schizoid personality disorder. That claim was denied by an April 2004 rating decision. The Veteran thereafter had one year to file a notice of disagreement. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 20.302 (2010). When he failed to submit a timely disagreement with the April 2004 rating decision, it became final, as to the claim filed in December 2003 and as to the claim pending from January 1999. 38 C.F.R. § 20.1103 (2010). Thereafter, the earliest document that can be construed as a request to reopen a claim for service connection for a psychiatric disability was received by the RO on October 24, 2007. Thus, that is the earliest date from which the Veteran's claim for service connection for PTSD can be granted. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2010). The Board acknowledges the Veteran's contention that he is entitled to an effective date of October 1995 based on a VA determination that he was disabled for purposes of pension, in part due to his psychiatric condition. However, that contention has no legal merit. The record shows that, although the Veteran may have had a psychiatric disorder prior to October 24, 2007, and filed claims for service connection for a psychiatric disorder in November 1992, October 1995, May 1996, January 1999, and December 2003, those claims were finally denied. As such, the earliest effective date for the grant of a reopened claim is the later of the date of receipt of the new claim following the last final denial, or the date entitlement arose. In this case, the later date is the receipt of the application to reopen, or October 24, 2007. The Board does note that the Veteran's January 1999 claim for service connection for a psychiatric disorder was denied in March 1999 and he filed an April 1999 notice of disagreement. However, no statement of the case was issued following that notice of disagreement. Even if the Board were to find that the January 1999 claim remained open, the effective date would not be earlier. The effective date is the later of the date of claim to reopen or the date entitlement arose. The evidence of record did not support a finding that the Veteran had a psychiatric disorder that was incurred in service until the date of a March 25, 2008, VA letter that diagnosed PTSD due to military sexual trauma. Prior to that date, the evidence did not show that he had a psychiatric disorder as the result of military sexual trauma. In fact, that claimed stressor of being brutally cleaned due to poor hygiene was first reported in the Veteran's October 24, 2007, claim, which is the basis for the assignment of the current effective date. Therefore, even were the January 1999 claim to have remained open due to the Veteran having filed a notice of disagreement, the effective date could not be earlier than October 24, 2007, because the evidence prior to that date did not show medical diagnosis of PTSD due to military sexual trauma, and thus entitlement did not arise prior to that date. The Board find the preponderance of the evidence is against the assignment of an earlier effective date as the RO has already assigned the earliest possible effective date for the grant of benefits. While the Board sympathizes with the Veteran's position, the Board is bound by the law and is without authority to grant benefits on an equitable basis. 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Therefore, the Board finds that the preponderance of the evidence is against the claim for an earlier effective date and that claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist The Veteran's claim arises from his disagreement with the effective date assigned following the grant of entitlement to service connection for PTSD. Once a claim is granted it is substantiated and additional notice is not required. Thus, any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As to VA's duty to assist, the record reflects that VA associated with the claims file the Veteran's VA treatment records and afforded him a VA examination with respect to his claim in October 2008. The Board finds that those actions have satisfied VA's duty to assist and that no additional assistance is required. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). As such, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. ORDER Entitlement to an effective date earlier than October 24, 2007, for a grant of service connection for PTSD is denied. REMAND Additional development is needed prior to the disposition of the Veteran's claim for an initial rating in excess of 30 percent for PTSD. VA has a duty to assist claimants in the development of facts pertinent to claims and VA must accomplish additional development of the evidence if the record before it is inadequate. 38 U.S.C.A. § 5103A (West 2002). The Board regrets the additional delay that will result from this remand. Nevertheless, the Board is constrained by the fact that proper adjudication of the claims requires additional development. In written statements, the Veteran contends that he is entitled to a rating in excess of 30 percent for his PTSD. Specifically, he asserts that he has been rendered unemployable as a result of his psychiatric disorder. In support of his claim, the Veteran has submitted VA treatment records suggesting that he is unemployable due to his disability. A February 2009 VA treatment record shows a diagnosis of PTSD, a GAF score of 55, and a notation that the examiner did not see the Veteran as capable of being in a competitive job environment. A May 2008 VA treatment record also shows a diagnosis of PTSD and a GAF score of 49. The Veteran's most recent examination was in October 2008, at which time he was assigned a GAF score of 60. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2010); Robinette v. Brown, 8 Vet. App. 69 (1995). When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). Additionally, once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, VA must provide an adequate examination or notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the Veteran's last examination is not overly stale. However, clinical and lay evidence documents ongoing treatment for PTSD and indicates that his condition has worsened since the date of that examination. In addition, new evidence received subsequent to the October 2008 examination suggests that the Veteran is unemployable due to his PTSD, and the October 2008 examiner did not have the opportunity to consider that evidence. The Board also finds that the October 2008 examination is inadequate for rating purposes because the examiner's conclusions are not supported by adequate rationale and the examiner failed to discuss positive evidence in support of the Veteran's claim. Specifically, the examiner concluded that the Veteran's PTSD symptoms did not appear to cause any occupational impairment because the Veteran had employment difficulties prior to when he began to notice his PTSD symptoms. That conclusion fails to address whether the Veteran's PTSD symptoms, independent of other causes, have an adverse impact on his employability. It also fails to account for the possibility that the Veteran suffered from PTSD prior to when he first noticed manifestation of his symptoms. In that regard, the October 2008 examination report does not indicate a report of employment difficulties prior to military service. Finally, the examiner failed to address a July 1997 VA examination which found vocational impairment related to psychiatric symptoms, and a June 1994 medical employability evaluation which noted that the Veteran could not work with people, had difficulty with interpersonal relationships, and heard voices. Because there may have been a significant change in the Veteran's condition, and due to the inadequacy of the October 2008 examination report, the Board finds that a new examination is necessary to fully and fairly assess the merits of his claim. 38 U.S.C.A. § 5103A(d) (West 2002). Moreover, that new VA examination and opinion should include a review of all pertinent evidence in the Veteran's claims folder. 38 C.F.R. § 4.1 (2010). Furthermore, in light of the aforementioned clinical and lay evidence, that examination should include specific findings regarding the impact of the Veteran's service-connected psychiatric disability on his occupational and social functioning. Additionally, VA medical records appear to be outstanding, as there are references in the claims file to VA treatment for which there are no associated records. An August 2008 statement from the Veteran indicates that he was being treated at the Bay Pines VA medical center (VAMC) and that he completed a 12-week group therapy program for personal trauma. However, no records showing group therapy have been associated with the claims file. In addition, a February 2009 VA treatment note indicates that the Veteran was last seen in January 2009, but there are no VA treatment records in the claims file dated in January 2009. The Board also observes that the only VA treatment records in the claims file since the Veteran's grant of service connection have been submitted by the Veteran. Therefore, the Board finds that efforts to obtain those records should be made on remand. 38 C.F.R. § 3.159(c)(2) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). Lastly, a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when that claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, although a claim for individual unemployability was previously raised by the Veteran and denied by an unappealed April 2009 rating decision, the Board finds that the issue of entitlement to a TDIU rating has been raised by the record, because subsequent to that denial, the Veteran has provided evidence that he is unemployable due to his PTSD, raising a new claim for TDIU which is considered part of this appeal. Total disability will be considered to exist where there is impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2010). Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is 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, the disability shall be ratable at 60 percent or more, and 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 (2010). If the schedular rating is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the Veteran. 38 C.F.R. §§ 3.341(a), 4.19 (2010). Factors to be considered are the Veteran's education, employment history, and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). In this case, the Veteran has been granted a 30 percent disability rating for PTSD. As he is only service-connected for PTSD, his combined disability rating is also 30 percent. 38 C.F.R. § 4.25, Table I, Combined Ratings Table (2010). Therefore, he does not meet the minimum schedular percentage criteria for a TDIU. 38 C.F.R. § 4.16(a) (2010). The issue, then, is whether the Veteran's service-connected disability nevertheless prohibits him from securing and following gainful employment, such that a TDIU rating may be assigned pursuant to 38 C.F.R. § 4.16(b) (2010). The Board finds that an opinion is needed as to whether the Veteran, solely as a result of his service-connected disability, is no longer able to be employed or whether he is more generally unemployable. It does not appear that an examiner has yet been asked to render an opinion as to the overall effect of the Veteran's service-connected psychiatric disability on his ability to obtain and retain employment. Therefore, the prudent and thorough course of action is to afford the Veteran an examination to ascertain the impact of his service-connected psychiatric disability on his unemployability. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims folder all medical records from the Bay Pines VAMC from October 2007 to the present. 2. After obtaining the above records, schedule the Veteran for a VA examination to determine the current severity of his service-connected psychiatric disability. The claims folder should be reviewed by the examiner, and the examination report should note that review. The examiner should provide a complete rationale for all conclusions reached and should discuss those findings in relation to the pertinent evidence of record, particularly the Veteran's previous VA examination conducted in October 2008 and his subsequent treatment for PTSD. Additionally, the examiner should provide a full multi-axial diagnosis pursuant to DSM-IV, to include a GAF score. All signs and symptoms of any psychiatric disability should be reported in detail. The examiner should also describe the overall impact of the Veteran's psychiatric problems on his occupational and social functioning. Specifically, the examiner should opine as to whether the Veteran's service-connected psychiatric disability, without consideration of any nonservice- connected disabilities, renders him unable to secure or follow a substantially gainful occupation. 3. Then, readjudicate the claim, including consideration of the propriety of the Veteran's initial rating based on the entirety of the evidence. If the decision remains adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response. Then, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs