Citation Nr: 1123288 Decision Date: 06/17/11 Archive Date: 06/28/11 DOCKET NO. 94-22 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a total disability rating for compensation purposes based on individual unemployability (hereinafter referred to as TDIU), prior to December 5, 2005. 2. Entitlement to an effective date earlier than March 30, 1987, for the award of service connection for PTSD. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from June 1966 to November 1970. This appeal arises to the Board of Veterans' Appeals (Board) from a February 1988-issued rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that in pertinent part granted service connection for PTSD effective November 20, 1987. The Board remanded the case in December 1997, July 2004, and in February 2010. Although PTSD has been rated 100 percent effective from March 30, 1987, and the RO has granted entitlement to TDIU effective from December 5, 2005, there remains the portion of the appeal period prior to December 5, 2005, that does not enjoy a simultaneous 100 percent schedular rating and TDIU rating. Entitlement to TDIU prior to December 5, 2005, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a final January 1986 rating decision, service connection for PTSD was denied. 2. The Veteran has not asserted CUE in the final January 1986 rating decision. 3. A VA treatment report dated April 15, 1986, relates to PTSD. 4. On March 30, 1987, the RO received a new claim for service connection for PTSD, which resulted in a grant of service connection and an initial rating effective from March 30, 1987. CONCLUSION OF LAW The criteria for an effective date of April 15, 1986, for service connection for PTSD are met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002); §§ 5101, 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.104, 3.105, 3.151, 3.155, 3.157, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The claimant challenges the effective date assigned following the grant of service connection for PTSD. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court), held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id. at 490-91. Because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained the specified VA out-patient treatment reports. The claimant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Earlier Effective Date The Veteran seeks an effective date earlier than March 30, 1987, for service connection for PTSD. He submitted an original service connection claim for dental trauma in August 1972, shortly after his discharge from active military service. In that claim, he did not ask for service connection for PTSD or other acquired nervous disorder. Thereafter, the RO date-stamped a formal application for service connection for PTSD on August 28, 1985. This is the earliest claim for service connection for PTSD on record. The Veteran was examined psychiatrically and was found to have an adjustment disorder. Because PTSD was not shown, in its January 1986 rating decision, the RO denied service connection for PTSD. The RO notified the Veteran of that decision and he did not appeal. Thus, the decision became final after one year. The Veteran next requested service connection for PTSD in a statement received at the RO on March 30, 1987. He reported recent VA PTSD treatment. In a February 1988-issued rating decision, the RO noted that the claim was reopened. The RO then granted service connection for PTSD and assigned an effective date of March 30, 1988, for service connection for PTSD, based on the date of receipt of the claim for benefits. The effective date of service connection will be the later of the date of receipt of claim or the date entitlement arose if the claim is received more than one year after the Veteran's discharge from service. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. If based on receipt of new and material evidence, other than service department records, received after the final disallowance, the effective date will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q), (r) (2010). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2010). Because a similar service connection claim was denied on January 17, 1986, the Board cannot consider the earlier service connection claim or evidence received prior to January 17, 1986. No revision to the prior final decision may be made absent CUE or a finding of non-finality. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.400(k); Best v Brown, 10 Vet. App. 322 (1997) 38 C.F.R. § 3.105. The Veteran has not asserted that the January 1986 rating decision is based on CUE or that it lacks finality. The next question is whether at any time after January 17, 1986, and prior to March 30, 1987, the Veteran submitted a claim for service connection for PTSD or other acquired psychiatric disorder. The claims files do not reflect that the Veteran has submitted such a claim; however, under certain circumstances, a treatment report may suffice as a claim for service connection. Under 38 C.F.R. § 3.157 (a), a treatment report dated prior to the actual date of receipt of a claim may suffice as a claim to reopen. The VA report must relate to the disability for which service connection is sought. In this case, a formal claim for compensation had been disallowed in the January 1986 rating decision, thus making it necessary to "reopen" the claim. The provisions set forth at § 3.157 are available under this circumstance. Under 38 C.F.R. § 3.157 (b) (1), if the pertinent medical report is a VA medical report, the date of the report itself may suffice as the date of the claim, if the actual claim is received within one year of the date of that VA medical report. § 3.157 states that a claim specifying the benefit sought must actually be received within one year from the date of the examination, treatment, or hospital admission. Because the claim to reopen was actually received on March 30, 1987, the next inquiry is whether there is a PTSD-related VA examination, hospital, or other related treatment report dated within one-year earlier of March 30, 1987. Several documents meet this requirement. The earliest-dated treatment report that relates to PTSD, and which is dated within one-year of March 30, 1987, is an April 15, 1986-dated VA report that mentions that the Veteran requested VA hospitalization due to anxiety at home. A diagnosis of PTSD had already been noted in 1985 and earlier 1986 VA reports. As mentioned above, to qualify as an informal claim, the VA medical report must relate to PTSD, which it does, as PTSD is an anxiety disorder. This report therefore is sufficiently related to qualify as a claim for benefits. After considering all the evidence of record, the Board finds that the evidence favors an earlier effective date of April 15, 1986, for service connection for PTSD. ORDER An earlier effective date of April 15, 1986, for service connection for PTSD, is granted. REMAND A remand for re-adjudcation of the claim for an earlier effective date for TDIU is required for two reasons. First, because an earlier effective date for service connection for PTSD has been granted above, an earlier appeal period for both an initial PTSD rating and a potential TDIU rating has been created. The RO must address the ratings to be assigned during this period prior to Board review. Secondly, in its February 2010 REMAND, the Board informed the AMC that the Court has recently held that a 100 percent schedular rating no longer precludes consideration of a simultaneous TDIU rating. The Board noted that in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant special monthly compensation under 38 U.S.C.A. § 1114(s). The Court concluded therefore that it might benefit the Veteran to retain [or obtain] a TDIU rating, even where a 100 percent schedular rating has been granted. Notwithstanding the Board's remand instruction, the AMC, in December 2010, issued a supplemental statement of the case wherein the AMC denied further consideration of an earlier effective date for TDIU on the basis that, "Whenever a 100 percent evaluation is assigned for a service-connected disability, a finding of individual unemployability is precluded." The AMC cited no legal authority for that position. The AMC's SSOC is in sharp contrast to the Court's holding and the Board's instruction, and therefore appears to be clearly erroneous. The Court has also held that when the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, a remand is necessary. Accordingly, the case is REMANDED for the following action: 1. The AMC should develop the TDIU claim for the earlier portion of the appeal period (beginning April 15, 1986); ensuring that VA's duty to notify and develop has been fulfilled. 2. After the development requested above has been completed to the extent possible, the AMC should re-adjudicate the earlier effective date claim. If the benefits sought remain denied, the Veteran should be furnished an SSOC and given an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. The purposes of this remand are to comply with due process of law and to further develop the claim. No action by the Veteran is required until he receives further notice; however, the Veteran is advised that failure to report for an examination (if an examination is deemed necessary) without good cause, may have adverse consequences on his claim. 38 C.F.R. § 3.655 (2010). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. 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). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs