Citation Nr: 1301730 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-31 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD), to include consideration of whether the appellant is entitled to a total disability rating based on individual unemployability due to service-connected disability (TDIU), prior to October 18, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Marine Corps from August 1965 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision which granted service connection for PTSD and assigned an initial 30 percent evaluation, effective from August 2, 1994. The grant of service connection represented implementation of a June 2005 Board decision. The Veteran perfected an appeal of the initial evaluation, and after considerable development, the RO issued a February 2008 rating decision awarding a 100 percent schedular evaluation for PTSD effective from October 18, 2007. The Veteran then submitted a new notice of disagreement (NOD) with the effective date for the total evaluation. The RO incorrectly processed a new appeal styled as a request for an earlier effective date. In reality, the evaluation prior to October 18, 2007, was already on appeal from the July 2005 decision, and could not be the subject of a new appeal. In asking for the 100 percent evaluation to be assigned from an earlier date, the Veteran is continuing her argument that higher initial evaluation was warranted for all of the appellate period. Accordingly, the issue has been recharacterized to reflect the accurate procedural posture of the appeal. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to insure a total review of the evidence. No additional evidence is contained in Virtual VA; documents therein consist of copies of correspondence and the February 2008 rating decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As was noted above, in accepting an NOD and establishing a separate and distinct appeal of the February 2008 rating decision, the RO erred. The Veteran already had an ongoing appeal related to the evaluation of PTSD since August 1994; this necessarily includes consideration of entitlement to a total disability rating prior to the currently assigned effective date. The Veteran's correspondence is in actuality nothing more than a declaration of continued disagreement with the evaluation assigned prior to October 18, 2007. One effect of the error in properly identifying the issue on appeal is that it has limited consideration of the evidence by VA and, potentially, argument by the Veteran. The February 2008 decision discussed only the October 18, 2007, VA examination; although the extensive Social Security Administration (SSA) records just associated with the file, covering the early 1990's, were noted as evidence, there was no actual consideration or discussion of them. The RO determined that the grant of a 100 percent evaluation from 2007 was a full grant of the appeal, ignoring the period from August 1994 to October 2007. Subsequent discussions continued to omit consideration of the period for which a 30 percent evaluation was assigned. At best, VA merely repeated that such a rating had been assigned, without addressing the specific findings reflected in newly obtained evidence or highlighted in the Veteran's argument. The Board cannot find, therefore, that the Veteran has had a full and fair opportunity to participate in the processing of her claim. Discussion has been skewed away from application of the rating criteria to application of effective date statutes and regulations. The totality of the evidence has not been considered for all periods under appeal. Remand is required for issuance of a supplemental statement of the case (SSOC) properly identifying the issue and addressing all relevant evidence of record under all potentially applicable rating criteria. To that end, the Board notes that the Veteran's claim has been pending since August 2, 1994. The criteria for evaluation of PTSD were amended effective November 7, 1996, during the pendency of the claim. Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies (from the effective date of the change), absent Congressional intent to the contrary. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). In Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) overruled Karnas, to the extent that it conflicts with the precedents of the United States Supreme Court (Supreme Court) and the Federal Circuit. In VAOPGCPREC 7- 2003, VA's General Counsel held that Karnas is inconsistent with Supreme Court and Federal Circuit precedent insofar as Karnas provides that when a statute or regulation changes while a claim is pending before the VA or a court, whichever version of the statute or regulation is most favorable to the claimant will govern unless the statute or regulation clearly specifies otherwise. The General Counsel held that the rule adopted in Karnas no longer applies in determining whether a new statute or regulation applies to a pending claim. The General Counsel indicated that pursuant to Supreme Court and Federal Circuit precedent, when a new statute is enacted or a new regulation is issued while a claim is pending before the VA, the VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, the VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, the VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce retroactive effects, the VA ordinarily must apply the new provision. VAOPGCPREC 7-2003. As both sets of criteria are potentially applicable, any SSOC must notify the Veteran of both. Prior notifications did not include complete information, if any, regarding the older criteria. Finally, a claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran here has very clearly argued she is unemployable, and numerous doctors have so opined. She is in receipt of SSA disability benefits, and VA had previously awarded her a nonservice connected pension. TDIU entitlement must be considered as part of the ongoing appeal, both to the extent it is part of the pre-1996 rating criteria, and as an extraschedular benefit under 38 C.F.R. § 4.16. In connection with the inferred TDIU claim, a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, would be helpful. This form will provide an updated picture of the Veteran's employment, if any, since 1990. Although she maintains she has not worked, she has also indicated in some Vet Center treatment records that she was cleaning a relative's house for an hourly wage, and may have pursued similar work outside her family. On remand, a completed VA Form 21-8940 should be requested, and the Veteran informed of the potential importance of such to her claim. She should also be provided with notice concerning how to substantiate her claim for an increased rating on that basis pursuant to 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that she complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. She must be specifically asked to identify any work or gainful occupation she has engaged in since 1994, to include self-employment. 2. Provide notice to the Veteran concerning how to substantiate her claim for an increased rating on the basis of TDIU pursuant to 38 C.F.R. § 3.159 (2012). 3. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal, to include consideration of entitlement to TDIU. If the benefit sought remains denied, issue an appropriate SSOC and provide the Veteran and her representative the requisite period of time to respond. Such SSOC must include information regarding the rating criteria before and after November 7, 1996, and consider the complete evidence of record. The case should then be returned to the Board for further appellate review, if otherwise in order, after the Veteran has been provided with an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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 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. 2012). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).