Citation Nr: 1301736 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-39 151 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an effective date earlier than September 1, 2007, for the assignment of an increased 70 percent rating for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant and his spouse ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1970. This case comes before the Board of Veteran's Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In July 2012, the Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is of record. A review of the Veteran's Virtual VA electronic claims file reveals additional VA outpatient treatment records dated through November 2011. These records were considered by the RO, as reflected in a December 2011 rating decision and supplemental statement of the case; therefore, a remand for initial RO consideration of this evidence is not necessary. FINDINGS OF FACT 1. In a July 2004 rating decision, the RO granted service connection for PTSD and assigned a 50 percent disability evaluation effective from January 23, 2004. The Veteran filed an untimely substantive appeal in January 2006, and the July 2004 rating decision became final. 2. The RO accepted the January 2006 substantive appeal as an informal claim for an increased evaluation for PTSD. 3. It was factually ascertainable as of February 9, 2005, that the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas, such as work, school family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for an effective date of February 9, 2005, but no earlier, for the award of an increased 70 percent rating for PTSD, have been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Nevertheless, the Board notes that such notice is unnecessary in this case. The Veteran is challenging the effective date for the grant of an increased evaluation in a March 2009 rating decision. If, in response to notice of its decision on a claim for which VA has already given the § 5103 notice, VA receives a notice of disagreement that raises a new issue, § 7105 (d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but § 5103 does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue. See VAOPGCPREC 8-03 (December 22, 2003); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006) (in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required). Thus, the Board finds that under the holding in VAOPGCPREC 8-03 and in Dingess, further notice from VA to the Veteran is not required with regard to his claim for an earlier effective date prior to September 1, 2007, for the assignment of a 70 percent disability evaluation for PTSD. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claims. His records from the Social Security Administration (SSA) have also been obtained and associated with the claims file, and the Veteran was provided the opportunity to testify at a hearing before the Board. VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them an SOC and a SSOC, which informed them of the laws and regulations relevant to the Veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. II. Law and Analysis Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Regarding claims for increased disability compensation, the pertinent legal authority provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). In VAOPGCPREC 12-98 (Sept. 23, 1998), VA's General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. T hat section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his 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. 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 one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). The basic facts of this case are not in dispute. In a July 2004 rating decision, the RO granted service connection for PTSD and assigned a 50 percent rating for the disability effective from January 23, 2004. The Veteran filed a notice of disagreement with the rating assigned in January 2005, and a statement of the case (SOC) was issued in November 2005. However, the Veteran filed an untimely substantive appeal in January 2006, and the July 2004 rating decision became final. In this regard, applicable regulations provide that a substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to a veteran or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). If a claimant fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, he or she is statutorily barred from appealing the RO decision. Roy v. Brown, 5 Vet. App. 554, 556 (1993). See also YT v. Brown, 9 Vet. App. 195 (1996); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992). Cf. Rowell v. Principi, 4 Vet. App. 9 (1993). The Veteran later submitted a statement in August 2007 indicating that he was hospitalized for PTSD treatment. In a February 2008 rating decision, the RO granted a temporary 100 percent evaluation due to a period of hospitalization over 21 days effective from June 25, 2007. A 50 percent rating for PTSD was continued from September 1, 2007. The Veteran subsequently filed a claim for an increased evaluation for PTSD in November 2008. In a March 2009 rating decision, the RO granted a 70 percent rating for PTSD effective from November 24, 2008, and the Veteran then appealed the effective date of the award of the 70 percent rating. During the course of his appeal, the RO issued another rating decision in December 2011 in which it found clear and unmistakable error in the effective date of the award of the 70 percent rating and instead assigned an earlier effective date of September 1, 2007. The RO specifically determined that the untimely January 2006 substantive appeal should have been considered a new claim for an increased evaluation. Given that a 100 percent rating was in effect from June 25, 2007, to August 31, 2007, the question remains whether the 70 percent rating is warranted prior to June 25, 2007. The Veteran contends that he is entitled to an earlier effective date for the award of the 70 percent rating for PTSD, as he experienced severe PTSD symptomatology prior to his June 2007 hospitalization. The pertinent evidence of record includes a February 2005 statement from a Vet Center clinical social worker. He noted that the Veteran continued to present with chronic and severe PTSD symptoms. He exhibited occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood due to such symptoms as anxiety, weekly panic attacks, and chronic major depression. The Veteran continued to report having great difficulty in adapting to stressful circumstances that resulted in behaviors of avoidance, isolation, and irritability that manifested as explosive rage directed toward those around him. He had no friends and relied heavily on his wife for support. The social worker commented that the Veteran was unable to establish and maintain effective relationships. He assigned a global assessment of functioning (GAF) score of 40 to 45 due to the severity of the Veteran's PTSD symptoms. A February 2005 private psychiatric evaluation reflects that the Veteran suffered from nightmares, flashbacks, difficulty getting along with others, depression, anxiety, mood swings, and some passive suicidal thoughts. On mental status examination, his affect and mood were depressed. He was oriented to time, place and situation. His concentration was impaired, but his insight was fair. The Veteran did not appear to have any auditory of visual hallucinations, and he did not present with any delusional thinking ideas of reference, or loose associations. An impression of severe PTSD was indicated. The psychiatrist commented that the Veteran had difficulty dealing with stress and impairment dealing with relating and getting along with others and stated that he was unable to handle much stress or hold any gainful employment. VA outpatient treatment records dated in 2005 also discuss the Veteran's PTSD symptomatology and treatment. In February 2005, it was noted that the Veteran had been referred for PTSD treatment from the Princeton Veterans Center. He reported having isolation from others, mood swings, and poor sleep. On mental status examination, he was alert and oriented, his mood and affect were dysphoric, and his affect was suspicious. The Veteran's memory, judgment, and insight were fair, but he did have some difficulty with concentration and abstract thinking. He did not experience hallucination or delusions, and he denied having suicidal ideation. He was diagnosed with PTSD, and a GAF score of 50 to 55 was assigned. In March 2005, the Veteran reported having symptoms of depression and irritability. He stated that he would rather be alone or alone with his wife. If he heard a loud noise at work or had to crawl in a small space under his house, it triggered a flashback of Vietnam. He denied having any suicidal or homicidal ideation. A GAF score of 50 was assigned. In April 2005, the Veteran reported that he felt more depressed. In October 2005, he also reported that he experienced nightmares, irritation, anger, and nervousness. In a statement submitted in January 2006, the Veteran's spouse reported that she witnessed the Veteran's daily struggle with his PTSD symptoms. She noted that, when they go out to eat, he had to sit in the corner with his back against the wall and that he had difficulty in crowds. She also stated that he had problems holding down jobs for many years and indicated that the Veteran was very moody and had nightmares. A February 2006 VA mental health assessment reflects that the Veteran slept 2 to 4 hours per night and experienced nightmares 3 to 4 times per week. While the Veteran did go to a PTSD group, he felt easily startled and nervous in the group. He continued to feel short-tempered, irritable, moody, anxious, and depressed. He denied having any audio or visual hallucinations or suicidal or homicidal ideation, although he admitted to occasional passive suicidal thoughts with no plan. On mental status examination, he was casually dressed and appropriately groomed. He maintained eye contact and speech, and his thought processes were clear and coherent. He was diagnosed with PTSD, and a GAF score of 50 was assigned. In April 2006, the Veteran reported that he was not sleeping well, had nightmares, and found it difficult to concentrate. He reported no desire to do anything. A GAF score of 49 was assigned. In May 2006, the Veteran underwent evaluation for a six week VA PTSD program. The evaluation report reflects that the Veteran was totally disabled and unemployable as a result of his PTSD and that minimal levels of stress exposure would further aggravate his condition. It was noted that he had been advised to avoid situations of stress as much as possible and would need on-going specialized treatment for his PTSD condition on an outpatient and inpatient basis in an attempt to prevent further deterioration of his PTSD. During VA treatment in July 2006, the Veteran reported having nervousness and feeling uptight, and he said that his wife had told him that he was irritable. He also indicated that he experienced nightmares and flashbacks, as well as some auditory hallucinations of loud bangs, people talking, and hearing vehicles that were not there. He was short-tempered and did not enjoy life as he had in the past. The Veteran described symptoms of depression. On mental status examination, he was alert and oriented with appropriate grooming and normal speech. His mood was depressed, and he was noted to be fidgety during examination. His thought process was normal and coherent. His insight was limited, and his judgment was good, although impulsive. He had impaired recent memory. A diagnosis of PTSD and a GAF score of 50 were assigned. An August 2006 VA outpatient treatment report reflects that the Veteran was alert and oriented. His motor activity was calm until he began to discuss combat in Vietnam during which he became fidgety and nervous. His affect was friendly and open until discussion of Vietnam at which time his affect became somewhat constricted. His mood was upbeat, but again changed to anxious when discussing Vietnam. The Veteran described having symptoms of difficulty sleeping, nervousness, and anxiety in crowds. A diagnosis of PTSD and a GAF score of 50 were assigned. Continued VA outpatient mental health treatment notes dated though December 2006 reflect the Veteran's problems with anxiety, depression, disturbed sleep, and nervousness. The Veteran participated in counseling sessions with a social worker to discuss his problems as well as coping strategies. During a January 2007 VA examination, the Veteran reported that he thought his PTSD had worsened over the years. He stated that he was hoping to attend a 12-week PTSD program because he thought he was more nervous, depressed, and anxious. He also indicated that he was having problems with his job and had to give it up because he could not take authority. He reported that he was uncomfortable in crowds and unsociable. He also indicated that he had flashbacks and nightmares. Although he had a past history of drug and alcohol abuse, he had stopped 25 years prior to examination. His subjective complaints included depression, anxiety, difficulty with coping, poor interpersonal relationships, flashbacks, difficulty with sleep, exaggerated startle response, fear of helicopters, mood swings, anger, and irritability. On mental status examination, the Veteran was appropriately groomed and spoke clearly, rationally, and audibly. His affect revealed some dysphoria, but no auditory hallucinations were elicited, and no active homicidal or suicidal plans were entertained. The Veteran's insight appeared to be poor. He had no particular hobbies and generally stayed to himself. A diagnosis of PTSD and a GAF score of 50 to 55 were assigned. The examiner commented that the Veteran definitely needed to continue outpatient psychiatric treatment, including developing hobbies and interests and leading a more productive life than what he was doing at that time. The Veteran continued to receive VA outpatient mental health treatment in 2007. Chronic problems of anxiety, disturbed sleep, and nervousness were again noted in these records. Then Veteran subsequently participated in a PTSD program from June 2007 to August 2007. At that time, the Veteran stated that he angered easily and experienced hypervigilance, hyperstartle response, severe insomnia, nightmares, flashbacks, and anxiety in crowds. A discharge summary reflects that the Veteran was cooperative and motivated during treatment and worked on trauma issues related to guilt, loss of a friend, and anger with authority figures. He set several goals for his return home, including doing more things with his wife to decrease isolation and to enlist her help by communicating more about himself and his feelings. The examiner noted that, while the Veteran made good progress in the program, he continued to have severe and chronic PTSD, which had significantly interfered with his occupational and social functioning. A January 2008 SSA disability benefits determination reflects that the Veteran was determined to be disabled as of June 2005 due, at least in part, to his PTSD. The report noted that the Veteran's treating psychiatrists and psychologists opined that his anxiety and PTSD prevent him from performing work-related activities and that his symptoms would continue despite ongoing treatment and medication. During his July 2012 Board hearing, the Veteran stated that the severity of his symptoms led him to participate in the VA PTSD program. He reported that his symptoms were better for awhile after the hospitalization, but have since declined. He argued that the fact that the severity of PTSD symptoms had not significantly improved since the hospitalization suggested that he was entitled to a 70 percent rating for the period prior to the hospitalization as well. As noted above, for claims for increased disability compensation, the effective date is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. See 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). As noted above, the July 2004 rating decision became final because the Veteran did not submit a timely substantive appeal. However, the untimely substantive appeal submitted on January 19, 2006, has been construed a new claim for an increased rating for PTSD. There is no other document of record that could constitute an earlier claim for increased rating for PTSD. While the date of claim has been established, the Board must next determine under 38 C.F.R. § 3.400(o)(2) the earliest date as of which it is factually ascertainable that a 70 percent disability evaluation was warranted for PTSD during the one year prior to January 19, 2006. The medical evidence received within one year of the January 2006 claim reflects that the Veteran experienced chronic, severe PTSD symptomatology supportive of a 70 percent rating. As noted above, a private psychiatric evaluation dated on February 9, 2005, includes a diagnosis of severe PTSD. The examiner indicated that the Veteran's psychiatric problems led to difficulty dealing with stress and relating to others and rendered him unable to hold any gainful employment. The February 2005 private social worker assessment also documents the Veteran as having social and occupational impairment with deficiencies in most areas, such as work, family relationships, judgment, thinking and mood due to such symptoms a depression and anxiety. The Veteran was reportedly isolative and irritable, and a GAF score of 40 to 45 was assigned. These February 2005 reports are consistent with the criteria for a 70 percent rating for PTSD. The General Rating Formula for Mental Disorders provides that a 70 percent rating is warranted for 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 affective the ability to function independently, appropriately, and effectively, impaired impulse control, neglect of personal appear and hygiene, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411. In addition, these reports are consistent with VA outpatient treatment records dated from 2005 through the June 2007 admission for the PTSD program. Those medical records document treatment and counseling sessions for the Veteran's chronic PTSD symptoms, including anger, social isolation, mood swings, and lack of motivation, as well as Veteran's contentions of worsening PTSD symptoms prior to the June 2007 treatment program. Those records show that his symptoms were worse before he entered treatment. Based on the foregoing, the first psychiatric evaluation reflecting severe PTSD symptoms consistent with a 70 percent rating is dated within one year prior to the Veteran's January 2006 claim for increase. Therefore, the Board finds that the effective date for the award of a 70 percent rating for PTSD should be February 9, 2005, which is the date on which it was factually ascertainable that an increase in the disability had occurred. There is no other evidence within one year of the receipt of claim discussing the Veteran's PTSD treatment or reflecting an increase in PTSD symptomatology. Thus, no earlier rating is assignable on this basis. Accordingly, given the facts noted above and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for an effective date of February 9, 2005, but no earlier, for the award of an increased 70 percent rating for PTSD have been met. ORDER An effective date of February 9, 2005, but no earlier, for the award of an increased 70 percent rating for PTSD is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs