Citation Nr: 1222452 Decision Date: 06/27/12 Archive Date: 07/10/12 DOCKET NO. 10-28 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date earlier than July 31, 2008, the award of a 100 percent disability rating for service-connected posttraumatic stress disorder (PTSD) with depression. ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active service from November 1966 to November 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran's appeal was previously before the Board in June 2011, when the Board remanded his claim for additional development (to wit obtaining the Veteran's Social Security Administration records). Those records were received in August 2011 and have been associated with the claims file. Consequently, the Board finds that substantial compliance has been met as to its previous remand. The Board notes that, by statement received from the Veteran on July 10, 2009, he revoked his power of attorney for a Veterans Service Organization as his representative. To date, he has not appointed a new representative. The Board also notes that, by rating decision issued in August 2007, the RO denied a claim for service connection for gastroesophageal reflux disease (GERD) as secondary to his service-connected PTSD. The Veteran filed a Notice of Disagreement as to that denial in October 2007. Although the RO issued a Statement of the Case as to that issue in December 2007, the Veteran failed to perfect an appeal by filing a VA Form 9 or other form of a substantive appeal. He was advised in a September 2008 letter that his appeal had been closed as he had failed to submit a timely appeal. Consequently, the Board has no jurisdiction to consider that issue at this time. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his symptoms of his service-connected PTSD with depression were consistent with a disability picture productive of total and social impairment for the one year period prior to July 31, 2008. CONCLUSION OF LAW The criteria for an effective date of July 31, 2007 for the award of a 100 percent disability rating for service-connected PTSD with depression are met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, and 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156, 3.157, 3.158, 3.160 and 3.400 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Requirements 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits. Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Sufficient notice must inform the claimant (1) of any information and evidence not of record that is necessary to substantiate the claim; (2) of the information and evidence that VA will seek to provide; and (3) of the information and evidence that the claimant is expected to provide. Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, the Veteran's claim arises from his disagreement with the initial assignment of the effective date following the award of a 100 percent disability rating for his service-connected PTSD with depression. Courts have held that, once the benefit sought is granted, the claim is substantiated, and additional notice is not required. Thus any defect in the notice provided is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). VA treatment records identified by the Veteran have been obtained. In June 2011, the Board remanded the Veteran's claim to obtain his Social Security Administration records. Such records were received in August 2011 and have been associated with the claims file. The Veteran has not identified any additional evidence not already obtained. Thus, the Board finds that all efforts have been made to obtain relevant, identified, and available evidence. VA examination was afforded as to the Veteran's claim for an increased disability rating for his service-connected PTSD with depression in April 2009. No further efforts need be provided to obtain a VA examination in the present case as the current appeal involves the issue of entitlement to an earlier effective date. Thus, the Board finds that VA has satisfied its duties to inform and assist the Veteran. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The effective date of an award of increased compensation can be the earliest date as of which it was ascertainable that an increase in disability has occurred, if the application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See Hazan v. Gober, 10 Vet. App. 511 (1997). In other words, the award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was ascertainable that the disorder had increased in severity during that time. See also VAOGCPREC 12-98. Applicable regulations provide that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). A claim, whether "formal" or "informal," must be "in writing" in order to be considered a "claim" or "application" for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Any claim for VA benefits must be submitted in the form prescribed by the Secretary. 38 U.S.C.A. § 5101(a). Section § 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). An informal claim is any communication indicating an intent to apply for one or more benefits, and must identify the benefit sought. 38 C.F.R. § 3.155(a). Moreover, the United States Court of Appeals for Veterans Claims (Court), has explicitly stated that the "mere presence" of a diagnosis of a specific disorder in a VA medical report "does not establish an intent on the part of the veteran" to seek service connection for that disorder. See Brannon v. West, 12 Vet. App. 32, 35 (1998). Another applicable regulation is 38 C.F.R. § 3.157(b)(1), which provides that the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. See Sears v. Principi, 16 Vet. App. 244, 247 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increased of a service-connected rating where service connection has already been established). Furthermore, the medical records must demonstrate that, when an underlying claim has been rewarded, the veteran's disability has increased, or when an underlying claim has been denied and the medical records evidence new and material evidence to reopen the claim. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006) citing to 38 C.F.R. § 3.157(b); Leonard v. Prinicipi, 17 Vet. App. 447,451 (2004); and Lalonde v. West, 12 Vet. App. 377, 381 (1999). In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score 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 (citing Fourth Edition of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV), p. 32). A GAF score 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)." A GAF score of 41 to 50 is defined as "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Ibid. The rating criteria for PTSD under Diagnostic Code 9411 provide that a 100 percent evaluation is assignable where there is total occupation 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 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. 38 C.F.R. § 4.130. In this case, on the basis of evidence of record available at the time, the Veteran was originally granted service connection in a November 2006 rating decision for PTSD with depression, which was assigned a 50 percent rating effective July 15, 2005. In a January 2007 rating decision, the 50 percent disability rating was continued. The Veteran did not appeal the initial 50 percent disability rating assigned for his now service-connected PTSD with depression. Consequently, these decisions became final and may not be revised except on a showing of clear and unmistakable error. See 38 C.F.R. §§ 3.105 , 20.302, 20.1103. The Board, therefore, can only look at claims made and evidence presented since the last prior final decision (i.e., January 2007 rating decision) to determine whether an effective date earlier than July 31, 2008, is warranted for a total rating for the Veteran's PTSD with depression. In the present case, it is clear that the Veteran did not submit either a formal or informal claim for an increased disability rating for his service-connected PTSD with depression. He did, however submit a statement entitled Notice of Disagreement on July 31, 2008, in which he stated he was disagreeing with a recent denial of a claim for individual unemployability. The problem was that he had never filed a claim for individual unemployability, nor had the RO recently denied such a claim. By letter dated in September 2008, the RO notified the Veteran that it was not accepting his July 31, 2008, correspondence as a Notice of Disagreement as it did not have a record of a claim for individual unemployability from him, but that would take this statement as a new claim for individual unemployability and was referring to the appropriate team for review and action. It does not appear, however, that action was taken on this claim at that time as a Report of Contact with the Veteran dated in January 2009 indicates again his desire to file a claim for individual unemployability and in February 2009, via his representative at that time, he submitted a claim for individual unemployability with and application on VA Form 21-8940. By letter dated in March 2009, the RO provided notice to the Veteran that it was working on his claim for individual unemployability in addition to claims for increased disability ratings for his service-connected disabilities. By rating decision issued in May 2009, the RO granted a 100 percent disability rating for the Veteran's service-connected PTSD effective July 31, 2008, the date his claim for individual unemployability was received. Via his representative, the Veteran submitted a Notice of Disagreement as to the effective date assigned raising two contentions. The first contention is that the effective date assigned should be taken back one year pursuant to 38 C.F.R. § 3.400(o)(2). The second contention is that it must be considered whether an informal claim under 38 C.F.R. § 3.157 has been submitted to determine whether an earlier effective date is warranted. The Veteran contends that October 16, 2006, should be the date of claim, which is the date of a VA examination for the Veteran's PTSD. The Board will address the second contention first as it finds that the October 16, 2006 VA examination report cannot constitute an informal claim for either an increased disability rating for service-connected PTSD with depression or for individual unemployability because at the time this examination was conducted service connection for a psychiatric disorder had yet to be established. As previously mentioned, service connection was granted in a November 2006 rating decision. In fact, the RO relied upon the October 2006 VA examination in granting service connection for PTSD with depression and the assignment of a 50 percent disability rating for the now service-connected disability in the November 2006 rating decision. Furthermore, the Veteran did not appeal the assignment of the 50 percent disability rating in the November 2006 rating decision, nor did he disagree with the January 2007 rating decision that continued that rating. Consequently, those decisions are final, and any evidence considered by the RO in rendering them cannot be the basis for an earlier effective date for a later award of an increased disability rating. Consequently, the question for determination is in the present case is whether there is any record between January 2007 rating decision and July 2008 claim that could serve as an informal claim for an increased disability rating for the Veteran's service-connected PTSD with depression under 38 C.F.R. § 3.157 and, if so, does the evidence support an evaluation of 100 percent. There are no private treatment records for that period, either of record or identified by the Veteran. There are, however, VA mental health treatment records in the claims file for the Veteran between January 2007 and July 2008. In fact, there are only three from May 2007, August 2007 and November 2007. Under 38 C.F.R. § 3.157, any of these VA mental health treatment notes may be considered an informal claim for an increased disability rating. In order to be considered as an informal claim for an increased disability rating, however, they must demonstrate that the Veteran's disability has increased. See Criswell v. Nicholson, 20 Vet. App. at 504. The Board finds, however, that none of these treatment records demonstrate that the Veteran's PTSD with depression had increased in severity. The May 2007 treatment note indicates that the Veteran reported improvement in his depression and sleep pattern. He reported a lessening in the intensity of his nightmares when he takes his medication. He also reported coping better with his PTSD. Mental status examination was within normal limits, except his mood was noted as depressed. Although the August 2007 treatment note shows that he reported worsening depression and sleep and having a flashback the week before in which he witnessed a fellow soldier killed by a booby trap in Vietnam, his mental status was noted to be within normal limits except for depressed mood as was previously reported. The November 2007 treatment note is merely a report that he participated in the PTSD group that day and does not provide any significant information except that, after the session, he expressed a good understanding of how one's relationship with self influences relationships with other people. The exception set out in 38 C.F.R. § 3.157(b) does not apply in this case. The Board cannot, however, dissociate previous and subsequent evidence of record indicating the Veteran's difficulties in occupational and social functioning in determining whether an earlier effective date is warranted. As pointed out by the Veteran's representative, the October 2006 VA examination report demonstrates that the Veteran reported that, after service, he went back to working for General Electric and attended trade school and learned welding. He later got involved with the union and was elected union steward. He stated that, at that point, the company became the enemy and that he would vent his anger on the company. He stated that during that time he did some "pretty bad things" and that the union would get him out of trouble. He referred that he was hospitalized in 1986 because he was planning to do harm to a manager he was working for and at that hospitalization he was diagnosed with PTSD. He was allowed to return to work only on the condition that he would get therapy at the VA. He reported that "after 36 and one half years, none of the supervisors would speak to me." He added that he just could not adjust to the changing work environment and that he therefore retired. Clinical testing demonstrated that the Veteran had symptoms and functional impairment in the moderate to severe range. The examiner assigned a GAF score of 50, which he indicated reflects the significant degree to which the Veteran's PTSD and related depression impacts his daily life. The Veteran reiterated his report of work-related difficulties in a statement submitted in October 2006 to VA in support of his claim. In addition, in an October 2006 letter to his congressman, the Veteran stated that he could not find suitable work because of his PTSD and physical condition (prior heart attack in 2001). However, he further stated that, because of his inability to adjust to pressure of a changing work place, he faced the possibility of losing his job or retiring. He therefore took an early retirement. Furthermore, the VA mental health treatment records subsequent to July 2008 but before the VA examination conducted in April 2009 show that the Veteran continued to have significant symptoms due to his PTSD and depression with continued significant difficulties with interpersonal relationships. A November 2008 psychiatric note demonstrates a GAF score of 50 to 55 assigned. Finally, the Board notes that there are no treatment records demonstrating an actual sustained improvement in the Veteran's PTSD and depression. Although the Board cannot find that any of the treatment records from January 2007 through July 2008 constitute an informal claim for an increased disability rating, the Board is willing to give the Veteran the benefit of the doubt based upon the totality of the evidence that, for the year prior to his filing his claim on July 31, 2008, for a TDIU, his PTSD with depression was consistent with a disability picture productive of total and social occupational impairment. The Board, therefore, finds that an effective date of July 31, 2007, but no earlier, is warranted for the award of a 100 percent disability rating for the Veteran's service-connected PTSD with depression based upon the provisions in 38 C.F.R. § 3.400(o)(2). ORDER Entitlement to an effective date of July 31, 2007, for the award of a 100 percent disability rating for service-connected PTSD with depression is granted, subject to controlling regulations governing the payment of monetary benefits. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs