Citation Nr: 1304231 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 98-18 992 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent from April 11, 1974, to October 6, 1999, for post-traumatic stress disorder (PTSD) with bipolar disorder (previously classified as depressive disorder) (hereinafter "PTSD"), to include consideration of an extraschedular evaluation. 2. Entitlement to an evaluation in excess of 50 percent for PTSD from October 7, 1999, forward. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Joseph R. Moore, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which awarded service connection for depression with anxiety and assigned an initial 10 percent evaluation effective December 7, 1994. In an August 2000 rating decision, the RO increased the disability rating to 30 percent effective October 7, 1999. Through a December 2001 decision, the Board awarded an earlier effective date of April 11, 1974 for the initial award of service connection and the 10 percent initial rating. In June 2002, the RO effectuated the award and assigned a 10 percent rating from April 11, 1974. In June 2006, the RO granted service connection for PTSD as related to the service connected bipolar disorder (which essentially recharacterized the Veteran's service-connected psychiatric disability) and assigned a single 50 percent rating from April 6, 2000. The disability previously classified as depressive disorder is currently classified as PTSD with bipolar disorder, which is reflected on the cover page. The Veteran appeared before a now retired Veterans Law Judge (VLJ) of the Board in September 2001. The Veteran was afforded the opportunity for a new hearing in August 2008 before the judge who would ultimately decide this case, which the Veteran declined. The Veteran asked that his claim be considered based on the evidence of record. The Board notes that the Veteran presented testimony at a hearing before his local RO in November 2006. These hearing transcripts have both been associated with the claims folder. In a November 2008 Board decision, it was determined that the criteria for an initial evaluation in excess of 10 percent for PTSD between April 11, 1974, and October 6, 1999, had not been met. While the Board found that the criteria for a 50 percent evaluation for PTSD had in fact been met from October 7 1999, the Board determined that no higher rating was warranted from that point. The Veteran appealed the November 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court). In June 2009, the Court issued an Order vacating that part of the November 2008 Board decision which denied an initial rating in excess of 10 percent prior to October 7, 1999, for PTSD and in excess of 50 percent thereafter, and remanded the matter for compliance with the instructions in a June 2009 Joint Motion for Remand (Joint Motion). Pursuant to the directions of Joint Motion, in January 2010, the Board remanded this case back to the RO for specified evidentiary development, namely, to obtain any available Vocational Rehabilitation records and to address possible referral of the Veteran's claims to the Under Secretary for Benefits or the Director of VA's Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). Thereafter, in May 2011, the Veteran's attorney provided additional evidence comprised of a private psychiatrist's treatment summary, VA outpatient records, and a statement from the Veteran. The case again came before the Board in July 2011, at which time it was again remanded. In that remand, the Board noted that while the evidence received in May 2011 was not formally accompanied by a waiver of RO initial consideration, it was readily apparent from the associated cover letter that the Veteran's attorney wanted the Board to directly consider this evidence in connection with the Veteran's appeal; this evidence was accepted for inclusion in the record. In the July 2011 Remand, the Board also observed that a new claim for entitlement to a TDIU had been reasonably raised. It was explained that the Veteran's attorney through May 2011 correspondence raised this issue, citing the Veteran's service-connected psychiatric disability as the condition underlying limitation in employment capacity. See e.g., Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (when a claimant submits evidence of a disability and makes a claim for the highest rating possible, and furthermore submits evidence of unemployability, VA must consider entitlement to a TDIU). It was also pointed out that the Veteran's TDIU claim was inextricably intertwined with the increased rating issue that is already before the Board. Thus, the Board assumed jurisdiction over the TDIU claim pursuant to VAOPGCPREC 6-96 (Aug. 16, 1996) and Rice v. Shinseki, 22 Vet. App. 447 (2009). Subsequently, in September 2011, the Veteran's attorney indicated that the Veteran wanted to withdraw both the TDIU claim and the component of the appeal seeking a rating in excess of 50 percent for PTSD for the portion of the appeal period extending from October 7, 1999, forward. As the TDIU claim was never actually adjudicated following or pursuant to the July 2011 Remand, the Board simply notes that this claim was not pursued on appeal, and is not in appellate status before the Board at this time. As the claim for a rating in excess of 50 percent for PTSD for the portion of the appeal period extending from October 7 1999, forward, was formally in appellate status and has subsequently been withdrawn pursuant to 38 C.F.R. §§ 20.202, 20.204 (2012), that claim will be formally dismissed by the Board herein. In the July 2011 Board Remand, additional records were sought and a VA examination was ordered, largely both in conjunction with the component of the claim seeking an increased rating in excess of 50 percent for PTSD. These actions were undertaken and specifically, a VA examination was conducted in October 2011. In addition, the Board specifically requested (in action 7) that in readjudicating the increased rating claims on appeal, the RO should provide thorough consideration of the availability of an extraschedular rating for the service-connected PTSD, including under the framework elaborated upon in Thun v. Peake, 22 Vet. App. 211 (2008). That directive appears to have been ordered in response to the discussion in the 2009 Joint Motion to the effect that Board had provided no explanation in the 2008 decision (now vacated) addressing whether the appellant presented an unusual disability picture pursuant to Thun and did not address evidence that referenced symptomatology that appeared to have impacted the Veteran's ability to practice law throughout the appeal period (emphasis added). As will be further explained herein, the Board has determined that both additional development and further notification efforts are required prior to the adjudication of this case. The claim of entitlement to an initial evaluation in excess of 10 percent from April 11, 1974, to October 6, 1999, for PTSD with bipolar disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT In September 2011 and again in October 2012, prior to the promulgation of a decision by the Board, the Veteran, through his attorney, elected to withdraw his appeal pertaining to the claim of entitlement to an evaluation in excess of 50 percent for PTSD from October 7, 1999, forward. CONCLUSION OF LAW The criteria for withdrawal of a substantive appeal concerning the claim of entitlement to an evaluation in excess of 50 percent for PTSD from October 7, 1999, forward, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a rating action issued in July 1998 by the VA RO in Newark, New Jersey, service connection was awarded for depression with anxiety, for which an initial 10 percent evaluation was assigned, effective December 7, 1994. A timely Notice of Disagreement with the initial rating assigned was filed in August 1998, and a Statement of the Case was issued in September 1998. A timely substantive appeal was filed in November 1998, giving the claim appellate status. While the appeal was pending, a 50 percent evaluation was granted for the Veteran's psychiatric condition, effective from April 6, 2000 (see SSOC of June 2003). In a November 2008, Board decision, an effective date of October 7, 1999 was granted for the assignment of a 50 percent evaluation for PTSD. Thereafter, even with this increase and earlier assigned effective date, the claim remained in appellate status. In a signed statement from the Veteran's attorney of record dated in September 2011, he indicated that the Veteran was satisfied with the assignment of a 50 percent evaluation for PTSD for the portion of the appeal period extending from October 7, 1999, forward, and wished to withdraw that issue from appellate status. The attorney provided information to the same effect in October 2012. Therefore, no allegations of errors of fact or law remain for appellate consideration with respect to the Veteran's claim seeking entitlement to an evaluation in excess of 50 percent evaluation for PTSD for the portion of the appeal period extending from October 7, 1999, forward. Accordingly, the Board does not have jurisdiction to review the appeal with respect to the aforementioned claim and it is dismissed. ORDER The appeal concerning the issue of the assignment of a 50 percent evaluation for PTSD for the portion of the appeal period extending from October 7, 1999, forward, is dismissed. REMAND Unfortunately, the Board's review of the claims file reveals that further RO action in this appeal is warranted, even though it will, regrettably, further delay an appellate decision on the matter remaining on appeal. As an initial matter, the Board emphasizes that the matter on appeal relates to a specific period of time from April 11, 1974 to October 6, 1999, during which the Veteran seeks an initial rating in excess of 10 percent for his service-connected psychiatric disorder. The Board observes that during the appeal period, major changes took place in the rating criteria used for the evaluation of the Veteran's condition. Specifically, pertinent regulations were changed effective January 19, 1988, and November 7, 1996. VA's General Counsel has held that where a law or regulation changes during the pendency of an appeal, the Board should first determine which version of the law or regulation is more favorable to the veteran. If the application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C.A. § 5110(g) (West 2002). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. VAOPGCPREC 3-2000 (April 10, 2000). With this in mind, the rating criteria in effect between April 11, 1974, to October 6, 1999, provided that prior to January 19, 1988, the Schedule of Ratings under 38 C.F.R. § 4.132 separated mental disorders into various categories, to include psychotic disorders, organic brain disorders, psychoneurotic disorders, and psychophysiologic disorders. The Veteran's disorder appears to be best characterized as psychoneurotic under this criteria. Under the applicable criteria in effect from April 11, 1974 to January 18, 1988, a 10 percent rating was assigned for psychoneurotic disorders with less than the criteria for the 30 percent, with emotional tension or other evidence of anxiety productive of moderate social and industrial impairment. 38 C.F.R. § 4.132. (1974 to 1987). A 30 percent was assigned for definite impairment in the ability to establish or maintain effective and wholesome relationships with people. The psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce considerable industrial impairment. Id. A 50 percent evaluation was applicable for evidence that the ability to establish or maintain effective or favorable relationships with people was substantially impaired. The criteria further provide that by reason of psychoneurotic symptoms, the reliability, flexibility and efficiency levels are so reduced as to result in severe industrial impairment. The Board notes that minimal statutory changes were made effective as of January 19, 1988. The rating criteria remained the same at the 10 percent level as that detailed above. However, for a 30 percent rating, the psychoneurotic symptoms would have to result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment (instead of considerable impairment, as was previously required). Similarly, the new criteria for the assignment of a 50 percent rating contemplated that by reason of psychoneurotic symptoms, the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment (instead of severe impairment, as was previously required). 38 C.F.R. § 4.132 (1988) (Emphasis added). Effective November 7, 1996, further changes were made in the rating criteria for mental disorders. A 10 percent rating was assigned under 38 C.F.R. § 4.130, for occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by continuous medication. A 30 percent disability evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130 (1997 to 2012). At no time, since the issuance of the November 2008 Board decision, has the Veteran's claim been adjudicated under the proper legal standards explained above. Specifically, SSOCs issued in September 2010 and December 2011 which readjudicated the claim for an increased rating prior to October 7, 1999, failed to apply or even reference the criteria in effect prior to November 1996. In order to correct this situation, by virtue of this remand the RO will be asked to issue a duty to assist letter to the Veteran and his representative advising them of the criteria, as detailed above which is applicable during the appeal period at issue. Further, the RO will be specifically instructed on remand, to reference and apply all of the different provisions and criteria applicable during the appeal period, on readjudication in a Supplemental SOC. Another administrative matter which must be addressed involves a directive issued in the 2011 Board Remand. Therein, the Board specifically requested (in action 7) that in readjudicating the increased rating claim on appeal, the RO should provide thorough consideration of the availability of an extraschedular rating for the service-connected PTSD, including under the framework elaborated upon in Thun v. Peake, 22 Vet. App. 211 (2008). That directive appears to have been ordered in response to the discussion in the 2009 Joint Motion to the effect that Board had provided no explanation in the 2008 decision (now vacated) addressing whether the appellant presented an unusual disability picture pursuant to Thun and did not address evidence that referenced symptomatology that appeared to have impacted the Veteran's ability to practice law throughout the appeal period (emphasis added). In a Supplemental Statement of the Case issued in December 2011, the RO failed to in any way address the matter of whether an extraschedular evaluation was warranted for any portion of the appeal period prior to October 7, 1999. The Court has held that RO compliance with a Remand is not discretionary, and that if the RO fails to comply with the terms of a Remand, another Remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). As such, upon readjudication, the RO will be again asked to address the matter of whether entitlement to an extraschedualar rating is warranted during any portion of the applicable appeal period. The Board also finds that additional evidentiary development is warranted in this case. Subsequent to the last SSOC issued in December 2011, additional evidence and argument has been added to the case. This evidence consists of a 10 page private psychiatric evaluation report with medical opinions provided. In a brief issued in October 2012, the Veteran's attorney identified this evidence as significant with respect to the issue pending appellate consideration, entitlement to an initial evaluation in excess of 10 percent from April 11, 1974, to October 6, 1999, for PTSD. He also identified the following as evidence which had significant bearing on the issue in appellate status, namely the degree of the Veteran's psychiatric impairment during the period from April 11, 1974 to October 6, 1999: a February 13, 2004 vocational rehabilitation report; statements from the Veteran's brother and sister which appear to have been received in 2009 or 2010 (as found in the VocRehab folder); a 1998 private medical report of Dr. M.J. dated in August 1998, who had treated the Veteran on a weekly basis from July 1984 to December 1986; VA examination reports of 1995 and 1997; and a January 1996 report of private treatment plan. To this point, no VA professional has offered an opinion, based on a review of the copious evidence on file relating to this matter that specifically addresses the level of impairment demonstrated by the Veteran over the period from April 11, 1974 to October 6, 1999. In this regard, the file at this point contains a great deal of lay and clinical information regarding the matter on appeal. The Board may only consider independent medical evidence to support its findings and may not provide its own medical judgment in the guise of a Board opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990). As such the Board believes that an opinion which discusses the clinical significance of the pertinent evidence of record, and addresses the matter of the relative credibility and value of contemporaneous medical records and lay statements, as well as lay statements, clinical records and assessments offered subsequent to or late in the appeal period in this case, would be of substantial value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicolson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In light of the matters mentioned above, a request for supplemental medical opinion is warranted in this case. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2010) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Finally, for the sake of completeness, the Board will request in the Remand that the Veteran provide information regarding whether he has applied for and/or been in receipt of disability benefits from the Social Security Administration (SSA) at any time since his discharge from service. Any such records, should they exist ,will be added to the record and considered to the extent relevant, upon readjudication. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with appropriate notification of the applicable relevant VA regulations and rating criteria (which have changed during the appeal period as explained above) relating to the claim in appellate status seeking an initial evaluation in excess of 10 percent from April 11, 1974, to October 6, 1999, for post-traumatic stress disorder (PTSD), and of the type and kind of evidence required to prevail in his claim. He should also be advised of the criteria used for establishing entitlement to an extraschedular evaluation during the appeal period. 2. The RO should determine if the Veteran filed a claim for SSA disability benefits at any time since his discharge from service. In the event of a negative response, this should clearly be annotated for the record. If the Veteran did file a claim for SSA benefits then the RO should obtain a copy of the decision to grant or deny SSA benefits, and the records upon which that decision was based, and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented to show the unavailability of those records. 3. It is requested that an opinion from a VA psychiatrist be obtained in this case in order to assess the nature and severity of the symptomatology associated with the Veteran's service-connected psychiatric disorder as manifested during the period from April 11, 1974 to October 6, 1999. In this regard, the psychiatrist is requested to review and summarize the pertinent evidence in this case extending from the Veteran's period of service, through the private medical opinion offered in August 2012. a. The psychiatrist is asked to describe the level of the Veteran's social and industrial impairment as shown during the period from April 11, 1974 to October 6, 1999, using the following terms: mild, considerable, definite, or severe; keeping in mind that different descriptions may be pertinent to different periods of time during the applicable appeal period. b. The psychiatrist is asked to specifically identify (by date and source) the lay or clinical evidence which he or she finds to be the most clinically significant in this case in terms of supporting the findings made in part (a). c. The psychiatrist is asked to provide an opinion addressing the matter of the relative credibility and clinical value of contemporaneous medical records in this case (those dated from service to 1999), in contrast to clinical records and assessments, as well as lay statements (such as from the Veteran and his family members), offered subsequent to or late in the appeal period in this case (i.e. assessing the Veteran's psychiatric condition from 1974 to 1999, in hindsight, for instance - as offered from 1998, forward). To the extent that these two types of evidence contain conflicting information regarding the nature and/or severity of the Veteran's condition during the appeal period at issue in this case (April 1974 - October 1999), the psychiatrist is asked, to the extent possible, to reconcile and explain any such conflicting information and findings for the record. The rationale for all opinions expressed must be explained. The claims file must be made available to and reviewed by the examiner in conjunction with the opinions requested above. 4. To help avoid future remand, VA must ensure that all aforementioned requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, then appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. The RO will then readjudicate the Veteran's claim seeking entitlement to an initial evaluation for a psychiatric disorder in excess of 10 percent during the period from April 11, 1974, to October 6, 1999. Readjudication of the claim should include consideration of all evidence added to the file (both paper and virtual) since the issuance of the most recent SSOC in December 2011. Readjudication of the claim should include consideration of whether staged ratings and/or an extraschedular evaluation for any portion of the appeal period are warranted. It is imperative that the various VA regulations and rating criteria applicable to this case; i.e. those effective prior to January 19, 1988; as of January 19, 1988; and as of November 7, 1996, be referenced in the SSOC and applied as appropriate in this case. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs