Citation Nr: 1202829 Decision Date: 01/26/12 Archive Date: 02/07/12 DOCKET NO. 08-35 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an effective date prior to October 14, 2006 for the grant of a 100 percent disability rating for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The veteran served on active duty from April 1968 to April 1971. The Veteran's discharge documents reflect he was awarded the Purple Heart Medal and the Combat Infantryman Badge. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in June 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The veteran testified before the undersigned Veterans Law Judge in March 2011. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran filed additional documents received on September 25 and October 24, 2006 which, in aggregate contain the necessary information to constitute a substantive appeal to the August statement of the case (SOC), of which notification was provided to the Veteran on August 25, 2006. These documents were received within 60 days following the August issuance of the SOC and are accepted as a substantive appeal as to that SOC. 2. The medical evidence demonstrates that the Veteran's PTSD symptomatology was productive of total occupational and social impairment on August 11, 2004, when VA treatment records first show an increase in PTSD symptomatology. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in favor of the Veteran, the documents received by the RO on September 25, and October 24, 2006 constitute a timely appeal to the August 2006 SOC. 38 U.S.C.A. § 7105 (2002); 38 C.F.R. §§ 20.200, 20.202 (2011). 2. Resolving all reasonable doubt in favor of the Veteran, the criteria for an effective date of August 11, 2004 for the assignment of a 100 percent evaluation for PTSD has been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In light of the favorable action taken herein, discussion of whether VA has met its duties of notification and assistance is not required, and deciding the appeal at this time is not prejudicial to the veteran. At the outset, the Board notes two procedural issues with this case. First, the Veteran filed a notice of disagreement (NOD) in October 2006 as to the August 2006 rating decision in which entitlement to a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) was denied. A remand for issuance of a statement of the case would ordinarily be required. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, given that the Board is granting a 100 percent schedular evaluation throughout the entirety of the period of time under appeal and prior to the date the Veteran's claim for TDIU was received, this matter is rendered moot. Second, the Veteran filed a claim in June 2007 for a total temporary evaluation for his service-connected PTSD on the basis of the need for hospitalization in May and June 2007 under 38 C.F.R. § 4.29 (2011). The RO did not address this claim. But, similar to the issue involving the unaddressed NOD, above, the matter is rendered moot by the grant of a 100 percent schedular evaluation throughout the entirety of the period of time under appeal, including that time during which the Veteran was hospitalized. The Board will not therefore address these matters. The Veteran argues that he is entitled to an effective date earlier than October 14, 2006 for the award of a 100 percent evaluation for PTSD. Specifically, he contends that the award should go back to the date he filed his claim for increase, in 2004. The general rule with respect to the effective date for an award of increased compensation is that the effective date of an award shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2011). An exception to that rule applies under circumstances where evidence demonstrates a factually ascertainable increase in disability during the one-year period preceding the date of receipt of a claim for increased compensation. In that situation, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2010); see VAOPGCPREC 12-98 (Sept. 23, 1998); see also Harper v. Brown, 10 Vet. App. 125 (1997) (noting that § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim (provided also that the claim is received within one year after the increase) and are not applicable when a claim is filed and the increase in disability is subsequently ascertainable). In all other cases, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1) (2011). A claim 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), 3.155 (2011). The regulation which governs informal claims, 38 C.F.R. § 3.155, provides as follows: "(a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant . . . may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it [the formal claim] will be considered filed as of the date of receipt of the informal claim." A report of examination or hospitalization may be accepted as an informal claim for benefits, but only after there has been a prior allowance or disallowance of a formal claim for compensation. Crawford v. Brown, 5 Vet. App. 33, 35-6 (1993); 38 C.F.R. § 3.157. See Lalonde v. West, 12 Vet. App. 377, 382. Thus, in fixing an effective date for an award of increased compensation, VA must make two determinations. It must determine when a claim for increased compensation was received, and when a factually ascertainable increase in disability occurred. With respect to the first determination, 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. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2011). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155(a) (2011). When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155(c) (2011). VA must look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for increased benefits and is requested to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196 (1992). By way of background, service connection for PTSD was originally granted in a July 2002 rating decision, and evaluated as 30 percent disabling, effective in May 2001. The Veteran submitted a NOD to this decision and, in a subsequent, June 2003, rating decision promulgated with an SOC, the RO granted a 70 percent evaluation, effective in May 2001. The Veteran did not file a substantive appeal or its equivalent to the June 2003 SOC. He did not file a document that could be construed as a notice of disagreement to the June 2003 rating decision. The July 2002 and June 2003 rating decisions, therefore, became final. See 38 U.S.C.A. § 7105 (2002); 38 C.F.R. §§ 3.160, 20.302, 20.1103 (2011). The next document filed by the Veteran that could be construed as a claim-formal or informal-is his September 2004 claim for increase. As noted, the Veteran filed a claim for increase which was received on September 14, 2004. In a June 2005 rating decision, the RO confirmed and continued the 70 percent evaluation. The Veteran submitted an NOD to this decision in July 2005. A month later, the Veteran also filed a claim for entitlement to a TDIU. In August 2006, the RO issued an SOC as to the issue of entitlement to an evaluation greater than 70 percent for the service connected PTSD. The notification letter was dated August 25, 2006. The RO also issued a rating decision denying entitlement to TDIU in the same month. The notification letter was dated August 28, 2006. On September 25, 2006, the RO received copies of private outpatient treatment records documenting PTSD symptoms the Veteran reported in June through August 2001. These symptoms include increased job stress, poor sleep, sadness, financial difficulties, and anxiety when recalling Vietnam experiences, depression, difficulties with sleep, relationship problems and thoughts of hopelessness, helplessness, no self worth and no sense of confidence. The health care provider noted that the Veteran's medications were increased. The records were accompanied by a copy of page two of a consent to release information dated in July 2006. On October 24, 2006, the RO received a letter from the Veteran entitled "NOD" and stating that he requested reconsideration for his claim for individual unemployability, based on the recent loss of his job. He enclosed a statement from his employer surrounding the circumstances of his loss of employment. The letter, dated in October 2006, states, in pertinent part: This letter is to inform you of the events leading up to the termination of employment for [the Veteran]. [The Veteran] first came to work for [company] in the position of salesclerk. [The Veteran] explained to me that he has problems dealing with people. Out of respect for [him], he was given a position in the receiving/shipping department where he could work without much contact from customers or other employees. He told me that he has Post Traumatic Stress Disorder stemming from his experiences in Vietnam. As part of [his] job, he needed to check in guns and knives for our Sporting Goods department. This is too much of a risk for me to have in my work force. And there were still problems with [the Veteran] working closely with employees. He told one employee to "just stay away from me before I hurt you." After several warning about his attitude and verbal abuse towards his fellow employees, [the Veteran] and I had a meeting on October 12, 2006 to resolve this issue. [The Veteran] agreed that his problem is a risk for the store and he worries about hurting someone. I could tell by his comments and actions that this scares him a great deal. We came to the mutual agreement that it would be better if [he] no longer work (sic) for the [company]. I cannot have one employee threaten other employees. We agreed that dismissal was the only option. Although the documents received in September 2006 are copies of documents that were already submitted and considered, the Board recognizes that the resubmission of these particular documents serve to underscore the severity of his symptoms. Thus the Board interprets the documents as signaling the Veteran's assertion that his PTSD is not properly rated. Similarly, the letter received in October 2006 addresses the claim for TDIU, but the attached letter from the Veteran's employer shows clearly that the Veteran was dismissed from his job due to his PTSD. Again, these documents not only illustrate the severity of his PTSD symptoms but again signal that his PTSD symptoms should be more highly rated. Both documents were received within 60 days following the issuance of the August 2006 SOC. Both submissions taken together express the Veteran's belief that his PTSD symptoms are more severe than were evaluated in the June 2005 rating decision. Moreover, both include supporting evidence in the form of medical treatment records and a lay statement. The Board thus finds these documents contain the necessary information to suffice as a substantive appeal. See 38 C.F.R. § 20.202 (2011). The July 2005 rating decision is therefore not final, and the Veteran's appeal as to the evaluation to be assigned his service-connected PTSD has thus been pending since his claim was received in September 2004. See 38 U.S.C.A. § 7105 (2002); 38 C.F.R. §§ 3.160, 20.302, 20.1103 (2011). The Veteran asserts that the effective date should be from September 2004, when he initially filed his claim for increase. The Board concurs that the July 2005 rating decision did not become final, for reasons articulated immediately above. In addition, upon review of the entire record, the Board finds no evidence that may construed as a claim, formal or informal, for an increased evaluation for PTSD subsequent to the June 2003 rating decision and prior to the Veteran's claim for increase received in September 2004. See Servello, supra; see also 38 C.F.R. § 3.157, see also Crawford, supra. The analysis thus turns to determining when it was "factually ascertainable" that the criteria for a 100 percent evaluation were met. In making this determination, the Board will consider evidence beginning September 14, 2003, which is one year prior to the date the Veteran's claim was received. Regarding the analysis as to when a factually ascertainable increase in disability occurs, the Board notes that disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 2002). Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). In determining when it is factually ascertainable that an increase in disability has occurred, the term "increase" means increase to the next disability level. Hazan v. Gober, 10 Vet. App. 511, 519 (1997). The Veteran's PTSD is evaluated under a General Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under this criteria, a 70 percent rating is warranted when there is 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. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994) (DSM-IV). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). The relevant evidence of record includes VA treatment records dated from June 2003 through October 2007, and an October 2004 VA examination report. VA treatment records show in June 2003, the Veteran's therapist noted that the Veteran was depressed but functioned somewhat in his daily life, although not very well. She described his PTSD condition as chronic and severe and noted that more progress was needed for him to stabilize and improve. The Veteran did not report for his next appointment. The next entry is dated August 11, 2004. The Veteran reported feeling very anxious and was having panic attacks and feeling like hurting somebody or himself. Subsequent entries in August 2004 show he reported increased symptoms and increased problems at work. He reported his medications weren't working, he was having flashbacks and nightmares that were interfering with work and his social interactions and coworkers. He said he was having thoughts of hurting others that scared him. He expressed vague feelings of wanting to lash out and hit coworkers and reported he had voluntarily requested to be removed from working with the public at work because of increasing difficulties with frustration tolerance. He reported concentration disruptions, panic attacks and anxiety worsening over the last two months. He was observed to have poorly controlled PTSD including vague suicidal ideation, hypervigilance, nightmares, intrusive thoughts, difficulty with irritability, avoiding others, avoiding stimuli that remind him of war, isolation, physiological and psychological distress from memories and stimuli, avoidance of family and friends, flashbacks, panic attacks with and without agoraphobia, and panic attacks. Physiological responses were further described as tightness in his chest and inability to breath. It is noted that the health care provider found it necessary to arrange with the Veteran to call his wife and ask her to have his son remove his guns from the house. The physician diagnosed PTSD and major depressive disorder, and assigned a GAF of 55 with 45 being the last GAF in May 2003. In October 2004, the Veteran underwent VA examination, at which time he was diagnosed with PTSD and chronic, severe PTSD, with major depression in AXIS I. His GAF was measured at 42. The examiner observed that the Veteran continued to experience severe symptoms associated with his PTSD and major depression resulting from combat experiences during his active service in Vietnam and exacerbated by the onset of war in Iraq. She opined that it was difficult to ascertain what types of employment would be feasible for the Veteran due to the severity of his problems. His primary stressor was work-related, and she noted that he may not be able to maintain his employment. She suggested a solitary job may be beneficial. VA treatment records in March 2005 reflect that the Veteran had returned for treatment after not being seen since September. The psychiatrist, also an M.D., noted that the Veteran's therapist had left and his lack of follow-up was likely due to that. He continued to report and present with problems with anger and irritability, significantly impacting work and marital relationships. He was observed to be profoundly depressed and to look tired. His mood was of helplessness and hopelessness. The therapist reported she discussed long term treatment with the Veteran, and other entries show that different medications were considered. Subsequent entries show that the Veteran continued to complain of and seek treatment for symptoms of PTSD, undergoing multiple changes in medication. In April 2005, he was seen emergently with increased violent ideation and depression. He reported the new medications made him unable to wake up. He was disoriented and experienced increased paranoia. Another entry shows he described the sensation as barely knowing himself. He stopped taking the medications and experienced increased depression. His GAF was assessed at 41-50. Throughout 2006, VA treatment entries reflect, he continued to report and seek treatment for his PTSD symptoms, to include continuing problems with work, inability to focus, anger, irritability and difficulties with changing medication regimes including increased nightmares. From May 6 to June 21, 2007 he was treated inpatient for his PTSD. The discharge summary shows and GAF measured at 36 on admission and 38 on discharge. The physician, a psychiatrist and M.D., opined that the Veteran was totally and permanently disabled as a result of his severe and chronic PTSD. Rating agencies are to handle cases affecting by change of medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations. 38 C.F.R. § 3.344 (2011). These documents clearly show an marked increase in PTSD symptomatology beginning in August 2004 and extending through until his hospitalization in May 2007, at which time, his treating VA physician and psychiatrist opined he was totally and permanently disabled as the result of his severe and chronic PTSD. The medical evidence thus establishes a disability picture that more closely approximates total occupational and social impairment from August 11, 2004. An effective date prior to August 11, 2004 is not supported by the medical evidence. The Board is mindful of the June 2003 VA treatment entry, in which the Veteran's therapist noted that he functioned somewhat, but not well. But, while her comments clearly reflect that the Veteran's condition was not stable and he needed treatment, the Veteran did not report for his next mental health appointment. In fact, there are no treatment records under the August 11, 2004 entry. Absent medical evidence of increase in disability greater than 70 percent prior to August 11, 2004, the Board is unable to assign an effective date prior to then. See 38 C.F.R. § 3.400 (2011). For the foregoing reasons, the Board finds that the claim for an effective date of August 11, 2004 is warranted. The preponderance of the evidence is against the assignment of an evaluation prior to August 11, 2004, there is no benefit of the doubt to be considered, and an effective date prior to August 11, 2004 is not warranted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date of August 11, 2004, and no earlier, for the grant of a 100 percent disability rating for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs