Citation Nr: 1306937 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 09-23 009A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to an initial rating greater than 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than March 18, 2005 for the award of service connection for PTSD. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from December 1966 to December 1968, and from May 1971 to September 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. In that decision, the RO awarded service connection for PTSD and assigned an initial 30 percent rating effective March 18, 2005. The Veteran has appealed the initial rating and effective date of award assigned. In July 2012, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A copy of the hearing transcript is associated with the claims folder. At the hearing, the Veteran waived RO consideration of additional evidence submitted to the record. As addressed more fully below, the Board finds that the Veteran has raised the issue of his entitlement to TDIU which is deemed part of the claim for increased compensation for PTSD. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). For administrative purposes, the TDIU issue has been listed as a separate "claim" on the title page. A review of the Virtual VA electronic records storage system does not reveal any additional records pertinent to this appeal which are not associated with the paper claims folder. 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 At the outset, the Board observes that the claims folder contents are not fastened in chronological order and is unclear whether any documents have been lost or misplaced. For example, the RO made a formal finding in November 2007 that service treatment records (STRs) for the period from December 1966 to December 1968 could not be located and had not been received. However, a September 1994 RO rating decision purported to review STRs for the period from December 1966 to December 1968 as well as from May 1971 to September 1976. The record only includes STRs from 1971 to 1976, which are the first documents located in the first of four claims folder volumes. Additionally, a March 2000 RO rating decision references review of VA treatment records from February 1998 to December 1999. However, the record does not include these treatment records. The reasons for these discrepancies are not evident. Nonetheless, the Board will first address the Veteran's claim of entitlement to an effective date earlier than March 18, 2005 for the award of service connection for PTSD. In pertinent part, the RO awarded service connection for PTSD in a December 2007 rating decision. The RO assigned an effective date for the award of service connection to March 18, 2005. In so doing, the RO determined that a December 2003 RO rating decision denying service connection for PTSD was final. See generally 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (the effective date of an award of compensation for a claim reopened after final disallowance will be the date of receipt of claim or the date entitlement arose, whichever is the later). However, the evidence reveals that a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, has been pending since July 26, 1999. In pertinent part, the RO construed written statements submitted by the Veteran on July 26, 1999 as a claim of entitlement to service connection for a psychiatric disability, as the Veteran referred to an effort to obtain an early return from combat zone duty in Vietnam to be with his ill mother which had a serious "effect" on his mind. The Veteran did not specifically allege having PTSD. An RO rating decision in March 2000 denied a claim of entitlement to service connection for a psychiatric condition on the basis that a psychiatric condition was not shown to have been incurred in or caused by active service. By letter dated March 30, 2000, the RO notified the Veteran of the service connection denial as well as his appellate rights. The record is clear that the Veteran did not submit a timely notice of disagreement (NOD) with the March 2000 RO rating decision. See 38 U.S.C.A. § 7105(a), (b) (appellate review is initiated by an NOD which shall be filed within one year from the date of mailing of notice of the initial review or determination). However, the record includes an August 23, 2000 VA PTSD examination report which diagnosed the Veteran with recurrent major depressive disorder. This examiner concluded that the Veteran had several PTSD symptoms and met Criteria A for a PTSD diagnosis, but that the Veteran did not meet the full criteria for a PTSD diagnosis due to a failure to articulate sufficient symptomatology. This examination report reflected the Veteran's history of depression, social withdrawal, anger difficulties and drinking which first began during active service. The Board cannot determine when the August 23, 2000 VA PTSD examination report was added to the record as it is not date-stamped. Chronologically, this examination report appears in the record prior to a November 2000 RO rating decision which adjudicated a claim of entitlement to nonservice-connected pension. The November 2000 RO rating decision only refers to reviewing an August 16, 2000 VA examination report - which is shown to be a pulmonary examination. Although the Veteran did not submit a timely appeal with respect to the RO's March 2000 denial of service connection for a psychiatric disorder, the Veteran's description of the inservice onset of psychiatric symptoms with a current diagnosis of major depressive disorder in the August 2000 VA PTSD examination report constitutes the receipt of new and material evidence received within one year of the March 2000 rating decision. This new and material evidence precluded finality of that claim until an RO readjudication of the claim. 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed.Cir. 2007) (holding that, pursuant to 38 C.F.R. § 3.156(b), an RO decision only becomes final after the appeal period has run with any interim submissions before finality being considered part of the original claim). The RO next formally denied a service connection claim for PTSD in a December 2003 rating decision on the basis that "the medical evidence of record fails to show a confirmed diagnosis of PTSD made by a physician." By letter dated December 29, 2003, the RO notified the Veteran of the PTSD denial as well as his appellate rights. The record is clear that the Veteran did not submit a timely NOD with respect to this decision. The Veteran next filed an application to reopen on March 18, 2005, which has served as the basis for the effective date of award assigned. However, the record discloses that, in January 2003, the RO received private clinic records which reflected diagnoses of situational anxiety and PTSD. A November 2002 record indicated that the Veteran had been receiving counseling at a "VA clinic." Additional records received in July 2003 included a diagnosis of insomnia which may be related to PTSD. In August 2003, the RO attached to the record VA clinic records which included a September 2000 Mental Health Clinic (MHC) evaluation that provided diagnoses of depressive disorder NOS and rule out (r/o) PTSD. This report recorded a past medical history of the Veteran first receiving treatment at the "Vet Center in Fairbanks" from "1997-3/00." The December 2003 RO rating decision reflects that the VA medical records were reviewed. The Board observes that the Fairbanks Vet Center is a community-based program which is part of VA, and that VA is deemed to have constructive possession of any records from the Fairbanks Vet Center. Dunn v. West, 11 Vet. App. 462, 466-67 (1998) (citing to Bell v. Derwinski, 2 Vet. App. 611 (1992) and Department of Veterans Affairs, Federal Benefits for Veterans and Dependents, 85 (1997 ed.) for determining that Vet Center records are generated by VA agents or employees which are deemed within the Secretary's control and, thus, are deemed constructively of record). The Vet Center records, which were obtained in September 2005, reflect that the Veteran was first evaluated for PTSD in June 1999. The counselor notes are ambiguous for a direct reporting of a PTSD diagnosis, but clearly imply that the Veteran was considered to have PTSD. For example, a January 2000 note reflects an assessment that the Veteran should continue obtaining appropriate PTSD treatment. In February 2002, the Vet Center counselor references assisting the Veteran in his PTSD claim. An October 2002 record reflects an assessment that the Veteran's PTSD was elevated. A May 28, 2004 Vet Center record, submitted by the Veteran in June 2008, reflects an effort by the Vet Center counselor to assist the Veteran in obtaining a "DD Form 215" to verify the Veteran's military awards and decorations, including a Combat Infantry Badge. A September 2005 record, received in September 2005, states that the Veteran had been diagnosed with PTSD since 1998 at the Fairbanks Vet Center. The provisions of 3.156(b) explicitly state that new and material evidence "received prior to the expiration of the appeal period" will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Pursuant to Dunn, the Vet Center records from 1999 to December 2004 are deemed to have been constructively of record, or "received," prior to the expiration of the one-year appeal period following the December 2003 RO rating decision that denied service connection for PTSD. As the Vet Center records generated before the expiration of the appeal period for the December 2003 RO rating decision demonstrate a diagnosis of PTSD, this evidence clearly constitutes new and material evidence pertaining to the basis for the December 2003 denial of the claim - the lack of a PTSD diagnosis. Thus, the Board finds that the provisions of 38 C.F.R. § 3.156(b) preclude finality attaching to the December 2003 RO rating decision denying service connection for PTSD. As a result, the Board finds that the RO has not issued a final decision regarding a claim of entitlement to service connection for an acquired psychiatric disorder pending since July 26, 1999, which reasonably encompasses a PTSD diagnosis given the lay and medical evidence of record during the continuing appeal period. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (the scope of a claim must be understood from the viewpoint of a lay claimant who may not be required to understand sophisticated legal or medical distinctions, and focus upon the symptoms the claimant is attempting to service-connect however diagnosed). However, the record at this time is insufficient to determine whether the Veteran has manifested PTSD before or soon after the filing of the claim in July 1999, or whether the additional psychiatric diagnoses had their onset in service, or are causally related to events in service. Thus, the Board requires medical opinion to address this matter. Additionally, this opinion should determine, to the extent possible, the nature and severity of the service-connected psychiatric disability since July 1999 in order to address the initial rating claim on appeal. See generally Chotta v. Peake, 22 Vet. App. 80 (2008) (parameters of the VA's duty to assist in determining the level of disability for purposes of awarding a retrospective rating may include requiring the VA to develop medical evidence through a retrospective medical evaluation). Finally, the Board notes that the Veteran has alleged that his PTSD renders him unemployable. He has referred to being rated as 100 percent disabled due to PTSD by the Social Security Administration. Thus, the issue of entitlement to TDIU has been reasonably raised in connection with the initial rating claim currently on appeal. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (once a claimant submits evidence of medical disability, makes a claim for highest possible rating, and submits evidence of unemployability, an informal claim is raised under 38 C.F.R. § 3.155(a)). See also Rice, 22 Vet. App. at 453-54. It would be fundamentally unfair to the Veteran to decide a claim which has not been developed and adjudicated by the RO. See Bernard v. Brown, 4 Vet. App. 384 (1993). This issue, therefore, is remanded for further development. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding the claim of entitlement to TDIU. 2. Associate with the claims folder clinical records of the Veteran's treatment for all his service-connected disabilities from February 1998 to September 2000 and from April 30, 2009 to the present as well as any additional records from the Fairbanks Vet Center since April 2006, if any. 3. Upon completion of the above, schedule the Veteran for appropriate examination to determine which currently manifested psychiatric disorders are attributable to service and for the purpose of determining the nature and severity of the service-connected psychiatric disorder(s) as manifested during the appeal period which may extend to July 26, 1999. The examiner should be provided access to the contents of the claims folder. Following interview of the Veteran, mental status examination, and review of the claims folder, the examiner is requested to address the following questions: a) identify all psychiatric disorders other than PTSD manifested since July 1999, and provide opinion as to whether it is at least as likely as not that such disorder(s) first manifested during active service or, alternatively, are causally related to events in service; b) whether it is at least as likely as not that the currently service-connected PTSD was manifested in July 1999 and, if not, identify when PTSD was first clinically demonstrated; c) provide a complete, multi-axis diagnosis with assignment of Global Assessment of Functioning (GAF) scores representing the time period from July 1999 to the present; and d) provide opinion as to whether it is at least as likely as not that the Veteran's psychiatric symptoms deemed of service-connected origin has rendered him unable to obtain or maintain substantially gainful employment for any time since July 1999? 4. Thereafter, readjudicate all the claims that are properly on appeal to include those listed on the cover page of this decision. In so doing, the RO's attention is directed to the Board's factual finding that a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, has been pending since July 26, 1999. If any benefit sought on appeal is not granted in full, the RO should furnish the Veteran and his representative a supplemental statement of the case and an appropriate period of time to respond. The Veteran has the right to submit additional evidence and argument on the 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. 2009). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).