Citation Nr: 1303360 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-15 487 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prier to November 30, 2010, and to a rating greater that 30 percent disabling from November 28, 2005. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to an effective date earlier than October 8, 1998 for the grant of service connection for PTSD. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1948 to June 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2005 (on the issue of PTSD) and September 2007 (on the issue of TDIU) rating decisions issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee. In May 2005, the RO granted entitlement to service connection for PTSD and assigned a 10 percent evaluation, effective October 8, 1998. Although the Veteran did not submit a notice of disagreement as to the assigned disability rating, he did write to VA in November 2005 in order to request an increase in disability rating. Subsequently, additional VA treatment records and the report of a March 2006 VA mental disorders examination were added to the claims file. The RO issued an April 2006 rating action assigning a 30 percent disability evaluation, effective November 28, 2005. However, because the treatment and examination evidence is both new and material in regard to the disability rating assigned for PTSD, and it was associated with the record prior to the expiration of the appeal period (one (1) year from the May 2005 rating decision), VA must consider it as having been filed in connection with the Veteran's October 1998 claim for service connection, which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2012). As this claim has not been certified as a claim for an increased initial disability rating, the Board has recharacterized it to correctly reflect this procedural history. See 38 C.F.R. § 19.35 (2012) (certification is for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction of an issue). Although the Veteran did not submit an NOD to the May 2005 rating decision as to the disability rating assigned for PTSD, he did submit a letter that the Board herein construes as an NOD as to the effective date assigned for the grant of service connection. Specifically, the Veteran submitted a letter that was received by VA on April 25, 2006. The Veteran stated that he had received the April 2006 rating action regarding his claim for an increased rating for PTSD, but did not understand the rating. He also stated that he felt "service connection and compensation for PTSD should date back to 1974." Although the Veteran mailed his statement in response to the April 2006 rating action, he expressed disagreement with the effective date assigned by the RO in the May 2005 rating action for the grant of service connection for PTSD. As the letter was received within one (1) year of the May 2005 rating action, the Board will construe it as an NOD to that decision. See 38 C.F.R. §§ 20.201, 20.302 (2012). The RO issued an August 2006 rating action denying entitlement to an earlier effective date for the grant of service connection for PTSD, but it has not yet promulgated a Statement of the Case (SOC) on this issue as required by Manlincon v. West, 12 Vet.App. 238 (1999). In accordance with the issue's procedural history, and pursuant to 38 C.F.R. § 19.35, the Board has added to this appeal the issue of entitlement to an effective date earlier than October 8, 1998 for the grant of service connection for PTSD. In August 2011, the Board issued a decision denying entitlement to a TDIU and granting entitlement to a 50 percent disability rating for PTSD from November 28, 2005 to November 30, 2010 and a 30 percent after November 30, 2010. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and, in a memorandum decision dated in July 2012, the Court vacated the Board's decision and remanded the issues to the Board. In the July 2012 memorandum decision, the Court also directed the Board to consider whether or not a letter from the Veteran, dated March 12, 2002, constitutes "a claim for revision of the Board's April 1976 decision based on CUE [clear and unmistakable error]." The Veteran's March 2002 letter states that it is a "request for [VA] to reconsider [its] first decision dated April 1976" and lists, with some specificity, his contentions of errors in the April 1976 rating action. The letter complied with the statutory requirements for a motion for reconsideration as provided by 38 C.F.R. § 20.1001, to include "set[ting] forth clearly and specifically the alleged obvious error, or errors, of fact or law in the applicable decision, or decisions, of the Board or other appropriate basis for requesting Reconsideration." Although similar requirements for an allegation of CUE can be found at 38 C.F.R. § 20.104, the Veteran's letter plainly stated that he was seeking reconsideration. The law requires that motions for reconsideration cannot also be considered motions for revision of a decision based on CUE. 38 C.F.R. § 20.1404(e). Further, the Board has previously addressed this issue in an April 2003 letter. The Board's April 2003 letter provided the Veteran with notice of his appellate rights, but he did not appeal the denial of his motion. For these reasons, the Board will not herein refer a claim as to whether or not the April 1976 rating decision should be revised or reversed on the basis of CUE. The Court's July 2012 memorandum decision also directed the Board to consider whether or not any claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD remained pending. The claims file reflects that the Veteran's October 1998 claim was a request for service connection for a "nervous condition." Treatment records associated with the claims file show that, prior to his March 2005 diagnosis of PTSD, he had been diagnosed with depression and anxiety. The March 2005 treatment record reflecting diagnosis of PTSD also reflects a diagnosis of depression. Subsequent treatment notes continue to reflect diagnoses of PTSD as well as depression. In Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009), the Court held that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim." Accordingly, the Board finds that, under the broad interpretation required by Clemons, a claim for service connection for an acquired psychiatric disorder other than PTSD has been raised by the record. As the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression and anxiety, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it. This issue is referred to the AOJ for appropriate action. After the Court issued the July 2012 memorandum decision, the Veteran submitted a "90 Day Letter Response Form" to the Board indicating that he wished for his case to be remanded to the AOJ for review of newly submitted evidence. Enclosed with the Response Form was a two (2) paragraph statement in which the Veteran reported that he was disappointed with a portion of the Court's decision, would like a re-examination by VA, and had experienced some memory problems that affected his speech pattern. Although the Veteran indicated that he wished for his case to be returned to the AOJ, only pertinent evidence submitted by a claimant to the Board must be reviewed by the agency of original jurisdiction (AOJ) prior to appellate review. 38 C.F.R. § 20.1304(c) (2012). The Veteran's letter presents argument, rather than evidence. Further, the Board has determined that this case must be remanded regardless of the Veteran's submission. For this reason, even if he had submitted additional evidence that was pertinent, he is not prejudiced by the Board's review. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens with no benefit flowing to the Veteran). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board must remand the claims file for the RO/AMC to comply with VA's duty to assist because the record reflects that additional evidence remains outstanding and an additional medical opinion is warranted. As the Veteran's claim for an increased disability rating for PTSD has been recharacterized by the Board to reflect that he has properly appealed the disability rating assigned when entitlement to compensation was established, effective October 8, 1998, the extent of impairment throughout that entire period must be considered and a determination must be made regarding whether "staged" ratings are warranted. See Fenderson v. West, 12 Vet.App. 119, 126-127 (1999). VA is required by the Veterans Claims Assistance Act of 2000 (VCAA) to assist claimants by gathering all pertinent records of VA treatment and all identified private treatment records. Review of the claims file reflects that the Veteran has received ongoing care from VA since filing his initial claim for service connection. Although many VA treatment notes are associated with the claims file, there are some gaps in the evidence. Specifically, no records were generated for the following periods: May 5, 1999 to November 10, 1999; January 13, 2006 to February 28, 2006; and from September 26, 2007 to October 29, 2007. Further there are no treatment records dated after September 27, 2010 associated with the claims file. While this case is in remand status, the RO/AMC must take appropriate steps to obtain any outstanding records from these time periods and associate them with the claims file. The Veteran's PTSD has been rated as 10 percent disabling from October 8, 1998 and 30 percent disabling from November 28, 2005. In the August 2011Board decision, the Board determined that a 50 percent disability rating was warranted from November 28, 2005 to November 30, 2010 and a 30 percent disability was warranted thereafter. The Board based that determination on the findings of a November 30, 2010 VA mental disorders examination. However, the Court determined in July 2012 that the November 2010 VA examiner's opinions were deficient, vacated the Board's decision, and remanded the matter to the Board for further development. VA must ensure compliance with the Court's order. See Stegall v. West, 11 Vet.App. 268, 271 (1998). VA's duty to assist Veterans in obtaining the evidence needed to substantiate a claim includes providing a thorough and contemporaneous medical examination. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). As more than two (2) years have passed since the last VA mental disorders examination, and the medical opinion resulting from the most recent examination was found deficient, a new examination is warranted. Further, as the Board has recharacterized the matter on appeal such that approximately seven (7) additional years have been added to the period under consideration, the Board also finds a VA examination necessary to retrospectively assess the severity of the Veteran's PTSD. See Chotta v. Peake, 22 Vet.App. 80 (2008); see also Vigil v. Peake, 22 Vet.App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence). Since the Veteran was last provided notice from VA in specific regard to his PTSD claim, the Court has held that VA must advise claimants as to how VA assigns disability ratings and effective dates in compliance with Dingess v. Nicholson, 19 Vet.App. 473 (2006). While this case is in remand status, the RO/AMC must send him a corrective letter. The claim for a TDIU also must be remanded to the RO via the AMC. As observed by the Court in the July 2012 memorandum decision, the Veteran's claim for a TDIU is inextricably intertwined with the claim for an increased rating for PTSD. Harris v. Derwinski, 1 Vet.App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). In regard to the remaining issue, as noted above, the Veteran's April 25, 2006 letter has been accepted as a notice of disagreement to the May 2005 rating action on the issue of the effective date assigned for service connection of PTSD. As the RO has yet to promulgate a statement of the case on the issue of entitlement to an effective date prior to October 8, 1998 for the grant of service connection for PTSD, this issue must be remanded to the RO for appropriate development. Manlincon v. West, 12 Vet.App. 238 (1999). The Board emphasizes that the Veteran must perfect his appeal in order to obtain appellate review. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2012). Accordingly, the case is REMANDED to the RO/AMC for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Gather any outstanding VA treatment records generated from May 5, 1999 to November 10, 1999; from January 13, 2006 to February 28, 2006; from September 26, 2007 to October 29, 2007; and after September 27, 2010 and associate them with the claims file. 2. Afford the Veteran an additional opportunity to submit any information that is not evidenced by the current record. Provide him with forms authorizing the release of any identified outstanding private treatment records. Make at least two (2) attempts to obtain records from any identified source. Any available records must be associated with the claims file. If any records are not available, inform the Veteran and request that he submit any copies in his possession. 3. Concurrent with the above, issue to the Appellant a VCAA notice letter, in specific regard to his claim for an increased disability rating for PTSD, meeting the requirements of Dingess (cited to above), particularly as to the assignment of disability ratings and effective dates. 4. After the above-directed development, issue the Veteran a Statement of the Case, accompanied by notification of his appellate rights, which addresses the issue of his entitlement to an effective date prior to October 8, 1998 for the grant of service connection for PTSD. The Veteran is reminded that to vest the Board with jurisdiction over this issue, a timely substantive appeal (VA Form 9) must be filed following the RO's issuance of the Statement of the Case. 38 C.F.R. § 20.202 (2012). If the Veteran perfects his appeal, conduct any further appellate proceedings as are established by relevant statute, regulation, and precedent. 5. Review the claims file and ensure that the above-directed development has been completed in full. If any additional development is necessary, take appropriate steps. 6. After obtaining any pertinent, outstanding records, make arrangements with an appropriate VA medical facility for an examination to ascertain the nature and severity of the Veteran's psychiatric disability[ies] for the period from October 8, 1998 to the present. The claims folder should be made available and reviewed by the examiner prior to interview and examination of the Veteran. The examiner must note in the examination report that the claims folder and the remand have been reviewed - to specifically include records of the Veteran's VA mental health treatment and his statements about his symptoms. Discuss the severity of disability from October 1998, with analysis of any changes in severity following the December 2004, March 2006, and November 2010 examinations. Any necessary tests or studies must be conducted, and all clinical findings should be reported in detail. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the pertinent evidence of record. The examiner also must render an opinion as to the effect of the Veteran's psychiatric disability on his employability since October 1998. 7. Readjudicate the remanded claims. If the claims are not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet.App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop the claim is both critical and appreciated. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet.App. 268, 271 (1998). 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). _________________________________________________ MARJORIE A. AUER 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).