Citation Nr: 1310013 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 06-14 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 18, 2007. 2. Entitlement to an effective date earlier than May 6, 1999, for the award of service connection for posttraumatic stress disorder (PTSD). (The issues of an initial rating in excess of 10 percent for right shoulder arthritis prior to June 17, 2011; a rating in excess of 20 percent for right shoulder arthritis since June 17, 2011; and an effective date prior to August 23, 2000 for the grant of service connection for right shoulder arthritis are the subject of a separate Board decision.) REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from July 1970 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Representation by the attorney identified above has been limited to the issues identified on the title page. The Veteran's increased rating and effective date claims associated with his service-connected right shoulder are therefore the subject of a separate decision. By way of history, in a July 2010 decision, the Board granted a rating of 70 percent for PTSD effective from May 6, 1999. It denied the Veteran's claim for an effective date earlier than May 6, 1999, for the award of service connection for PTSD, and remanded to the RO the issue of entitlement to a TDIU prior to April 18, 2007. The Veteran appealed the Board's decision with respect to the increase rating and effective date claims pertaining to PTSD to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 decision, the Court affirmed the Board's assignment of a 70 percent rating for PTSD, but vacated and remanded the Board's denial of an effective date earlier than May 6, 1999 for the grant of service connection for PTSD. Following the Court's decision, in a November 2012 letter, the Board invited the Veteran and his attorney to submit additional evidence or argument on the Court's remanded issue of an effective date earlier than May 6, 1999 for the award of service connection for PTSD. Subsequently, in a February 2013 letter, the Veteran's attorney notified the Board that no additional argument or evidence would be submitted. With respect to the issue of entitlement to a TDIU prior to April 18, 2007, the RO issued a supplemental statement of the case (SSOC) in January 2012 in which it denied an earlier effective date. (The decision below addresses the issue of entitlement to a TDIU prior to April 18, 2007. The claim for an effective date earlier than May 6, 1999, for the award of service connection for PTSD is addressed in the remand that follows the Board's decision.) FINDINGS OF FACT 1. The Veteran filed an informal claim for a TDIU on May 6, 1999. 2. Since May 6, 1999, the Veteran's service-connected PTSD has as likely as not precluded his obtaining or maintaining substantial gainful employment. CONCLUSION OF LAW The criteria for an assignment of an effective date of May 6, 1999, for the award of a TDIU have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.157, 3.340(a), 3.400, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification and development action needed to render a decision as to the claim for entitlement to a TDIU prior to April 18, 2007, has been accomplished. Through a May 2007 notice letter, the RO notified the Veteran and his attorney of the information and evidence needed to substantiate the underlying claim for entitlement to a TDIU. The notice letter included the criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Board also finds that the May 2007 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letter, the RO notified the Veteran that VA was responsible for obtaining relevant records from any Federal agency and that the RO would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer. Additionally, the notice letter requested the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability. Furthermore, the Veteran has been awarded service connection for a TDIU but is in disagreement with the effective date assigned. Once the Veteran disagrees with a determination, other notification provisions apply to the remainder of the adjudication process, particularly those pertaining to the issuance of rating decisions and statements of the case (SOCs). See 38 U.S.C.A. §§ 5104(a), 7105(d) (West 2002); 38 C.F.R. §§ 3.103(b)(1), 19.29 (2012); Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). The Veteran's VA treatment records are associated with the claims file (to include those associated with his Virtual VA electronic file). Likewise, a January 2001 Social Security Administration (SSA) hearing officer decision is also of record, and the Veteran and his attorney have submitted evidence and argument in support of his claim. Therefore, the Board finds that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim for an effective date for a TDIU prior to April 18, 2007. II. Analysis TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In its July 2010 decision, the Board awarded a 70 percent disability rating for PTSD effective May 6, 1999. As was noted by the Board in its July 2010 remand, when the Veteran submitted his application for benefits concerning PTSD on May 6, 1999, he filled in the section of the application that is titled "If you claim to be totally disabled" and indicated that he was not employed. As such, the issue of a TDIU was expressly raised by the Veteran at that time. Thus, the TDIU "claim" has been an aspect of the Veteran's rating claim since he submitted the application. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Specifically, as regards to 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 had 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. See 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). What is important in determining the effective date of the Veteran's TDIU award is the effective date of the 70 percent rating necessary to support an entitlement to TDIU, the date that the TDIU claim was submitted, and finally the date that the Veteran first failed to meet the "substantially gainful employment" standard. See 38 C.F.R. §§ 4.16(a); 3.400(o). Under 38 C.F.R. § 3.340(a), a total disability exists if there is impairment sufficient to render it impossible for the average person to follow a substantially gainful occupation. A claimant does not have to prove that he or she is 100 percent unemployable to establish an inability to maintain a substantially gainful occupation as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a). See VAOPGCPREC 12-2001 (July 6, 2001). Moreover, while the term "substantially gainful occupation" is not defined by regulation, the Court has interpreted the term, as used in 38 C.F.R. § 4.16(b), as referring "at a minimum, the ability to earn a living wage." Bowling v. Principi, 15 Vet. App. 1,7 (2001). Additionally, a claimant is not engaged in a substantially gainful occupation if his annual income is below the poverty threshold for one person. Id. Marginal employment, for example, as a self-employed farmer or other person, while employed in his or her own business, or at odd jobs or while employed at less than half the usual remuneration will not be considered incompatible with a determination of unemployability, if the restriction, as to securing or retaining better employment, is due to disability. 38 C.F.R. § 4.17(a); see also Moyer v. Derwinski, 2 Vet. App. 289, 295 (1992) (applying the definition of "marginal employment" in § 4.17(a), which concerns TDIU pension claims, to TDIU a compensation claim). The Veteran's formal application for TDIU (VA Form 21-8940) reflects that he graduated high school but had no higher degree or training. A review of the evidence reflects that the Veteran was treated for PTSD in 2000 at the VA Medical Center (VAMC) in Topeka, Kansas. A diagnosis of PTSD was provided in an initial evaluation by a treating psychiatrist in February 2000. At that time, the Veteran was operating several businesses. On examination, the Veteran was somewhat disheveled, his mood was euthymic and his remote memory was intact. Judgment and insight were fair, and he admitted to suspiciousness, paranoia, and to one episode of hallucinations. There were no signs of a formal thought disorder or delusions. The psychiatrist assigned a GAF (global assessment of functioning) score of 55. A different VA psychiatrist evaluated the Veteran in March 2000. She provided a diagnosis of PTSD and assigned a GAF score of 50. It was also noted that the Veteran did have a history of suicidal ideation and had recurrent thoughts of death. The Veteran reported experiencing homicidal ideation and had a history of shooting another man. His speech was highly circumstantial and he reported a history of two episodes of auditory hallucinations and one episode of visual hallucinations. An October 2000 assessment from Dr. C.P. contains diagnoses of PTSD, major depression, panic disorder, and alcohol dependence. Dr. C.P. noted that the Veteran was moderately limited in his ability to use reason and judgment, maintain an appropriate mood, remember, understand and carry out instructions, and totally limited in his ability to make social adjustments, relate to other people, and/or maintain normal concentration. In a report of September 2005 VA examination, the examiner reported that disturbances from PTSD caused the Veteran clinically significant distress as well as impairment in the ability to form and sustain interpersonal relationships. In January 2007, the Veteran underwent further VA psychiatric examination. In particular, he reported that he did not like to go to places with other people or socialize with others outside of his immediate family. The examiner noted that the Veteran was not working regularly but that he owned a Laundromat that he was trying to sell. On examination, the Veteran was noted to have suicidal thoughts. He was also noted to be depressed and hopeless, and sleep problems were evident along with some short-term memory problems. The examiner diagnosed PTSD and assigned a GAF score of 45. Notably, the examiner stated that the Veteran's psychosocial functioning had not changed significantly since his September 2005 VA examination. He also stated that some symptoms, such as suicidal ideation, auditory hallucinations, and paranoia were noted as possibly worsening when compared to that time period. The examiner furthermore commented that the Veteran had concentration and memory deficits that were affecting his ability to run his Laundromat business. The Veteran underwent further VA psychiatric examination in June 2007. The examiner noted, in particular, that the Veteran's PTSD symptoms interfered significantly with the Veteran's ability in most areas of his life. The examiner determined that the Veteran continued to meet the criteria for a diagnosis of PTSD and that major depressive disorder as secondary to the PTSD. A GAF score of 40 was assigned and the examiner characterized the Veteran's occupational and social functioning as deficient in work, family relations, judgment, thinking and mood. A January 2011 opinion from a VA clinical psychologist noted that the severity of the Veteran's PTSD had resulted in total occupational and social impairment since at least 1999. The psychologist also noted that the Veteran's employment with the railroad had succeeded in part because the Veteran's job required very little social interaction. Likewise, the Veteran's ownership of a Laundromat also required very little social interaction. The Veteran has submitted information regarding his income from 2001 to 2005, and that information does not reflect that he made money from the operation of the Laundromat. He reported that he had lost money on the operation. Furthermore, it is apparent that any additional income received from a rental property and the Veteran's farming enterprise did not result in the Veteran's self-employment from 2001 to 2005 meeting the level of gainful employment. Bowling, supra. While the Board does not have specific information on the viability of the Veteran's business ventures prior to 2001, nonetheless, it finds persuasive the Veteran's report in the May 6, 1999 VA Form 21-526 of earning $500 a month (before expenses) operating the Laundromat. This figure appears generally consistent with what the Veteran reported later. Therefore, with respect to the question of gainful employment since receipt of the Veteran's application for benefits, the Board does not find the Veteran's self-employment since May 6, 1999 was substantially gainful employment. 38 C.F.R. § 4.16(a). With regard to employability, the Board is persuaded in this case by the January 2011 statement from the VA psychologist, noted above, which is supported by the October 2000 VA treatment report in which the Veteran was noted to have serious social and occupational deficits secondary to his PTSD. Furthermore, the Board finds persuasive that in a January 2001 Social Security Administration (SSA) hearing officer decision, it was noted that effective March 1, 2000, the Veteran's physical and mental impairments precluded all employment. Therefore, in light of the discussion above, the evidence supports an award of a TDIU effective from May 6, 1999. Although the Veteran is pursuing a claim for an earlier effective date for the award of service connection for PTSD, even his own submissions prior to May 1999 did not suggest unemployability. He was gainfully employed with the railroad until 1992 and thereafter purchased a combination pawn shop and lawn mower repair shop, which a May 1993 VA report shows that he enjoyed owning and operating. Indeed, the May 1993 VA examiner did not find that the Veteran then experienced a psychiatric disability, and there is a lack of treatment or indication of PTSD until after the Veteran submitted his May 1999 application. Even the Veteran did not contend that he was unemployable until he submitted the 1999 application. Consequently, the evidence does not reflect unemployability due to PTSD prior to May 5, 1999, even if he actually experienced the disability before that time. It was not until after the application was received that entitlement was shown. ORDER An effective date of May 6, 1999 for the award of a TDIU is granted, subject to the laws governing the payment of monetary benefits. REMAND The Veteran originally filed a claim of service connection for PTSD that was received by the RO on January 25, 1993. By a June 1993 rating decision the RO denied the claim, and the Veteran was notified of the denial and of his appellate rights by a letter that same month. He did not appeal the decision within one year of that notice letter. On May 6, 1999, the RO received an application for benefits from the Veteran whereby he requested to reopen his previously denied claim of service connection for PTSD. Service connected was ultimately granted for PTSD and the award of service connection was made effective May 6, 1999. The provisions of 38 C.F.R. § 3.156(c) pertain to reconsidering claims based on newly discovered service department records and assigning an effective date as early as the date that the initial claim was filed (notwithstanding any prior decisions). As noted in the Introduction, the Court has remanded the claim for an effective date earlier than May 6, 1999, for the grant of service connection for PTSD. The Court, in its discussion of 38 C.F.R. § 3.156(c) (both pre- and post-amended versions of the regulation), noted that the addition of the current version of subsection (c)(2) was a substantive rule change and the subsection did not have retroactive effect. In so concluding, the Court explained that the plain language of 38 C.F.R. § 3.156(c)(2), when compared to the plain language of pre-amendment 38 C.F.R. § 3.156(c), created a bar to reconsideration based on newly associated service department records in particular circumstances where no bar previously existed. As such, the Court found the Board to have erred in the July 2010 decision when it retroactively applied subsection (c)(2) to deny the Veteran entitlement to an earlier effective date for his grant of service-connected PTSD. The Court has remanded the claim to have the Board apply 38 C.F.R. § 3.156(c) (2005) (pre-amendment provision), which, as discussed above, has no bar to reconsideration of newly associated service department records. The Court specifically indicated that the Board must now "determine the proper effective date for [the Veteran's] award of benefits for post-traumatic stress disorder[] irrespective of the date on which he provided sufficient information for VA to obtain the service department records, and which may be as early as the date of the original claim." The Board notes that the evidence currently associated with the claims file appears to show that the Veteran did not have any psychiatric diagnosis, to include PTSD, prior to May 1999. In particular, in a report of a May 1993 VA examination, the examiner commented that the Veteran may have had mild PTSD previously, but in light of the lack of symptoms on examination, a diagnosis of PTSD was not warranted. The report of examination also does not reflect any other diagnosed psychiatric disorder. Nevertheless, the Veteran has reported, both in VA treatment records and written statements, that he received treatment for psychiatric problems at the VA Medical Center (VAMC) in Leavenworth, Kansas. The treatment was noted as having been conducted in 1973 and again in 1988. In particular, a statement from the Veteran received by the RO in June 1993, reflects a request that the RO talk to his "doctors at Leavenworth Veterans Hospital" who had been treating him. In addressing the issue of current disability, the Court has held that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to VA's adjudication of the claim. Under such circumstances, provided the resolved disability is related to service, a claimant would be entitled to consideration of staged ratings. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In light of the Court's holding, above, the Board finds records from the Leavenworth VAMC to be potentially relevant in that any such records could demonstrate the Veteran did have a diagnosed PTSD related to his period of service at the time he filed his original claim for service connection for PTSD in January 1993. As such, a possibility exists that the Veteran could warrant a staged rating from the date of claim, January 1993, to May 1993, the date of the VA examination where no psychiatric disability was found. A review of the claims file and the Veteran's Virtual VA electronic file does not reflect any treatment records from the Leavenworth VAMC. Therefore, the agency of original jurisdiction (AOJ) should obtain any medical records associated with the Veteran's treatment at the VAMC Leavenworth. Any response from the VAMC Leavenworth should also include a comment concerning a search of any retired or archived records or that no such records exist, if applicable. Accordingly, the claim is REMANDED for the following action: 1. Obtain any available VA treatment records from the VAMC in Leavenworth, Kansas, especially from the 1970s, 1980s and 1990s. Any search must include a search of Leavenworth VAMC retired/archived records, if needed. If records from the Leavenworth VAMC are unavailable, or the search for them otherwise yields negative results, this fact must be documented in the claims folder and the Veteran notified in accordance with 38 C.F.R. § 3.159. 2. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the issue of entitlement to an effective date earlier than May 6, 1999, for the award of service connection for PTSD. (Consideration should be given to 38 C.F.R. § 3.156(c) (2005) (pre-amendment) and the Court's holding in McClain v. Shinseki (above)). If the benefit sought is denied, the Veteran and his attorney must be provided an SSOC and given an opportunity to respond before the case is returned to the Board for appellate review. 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). This case must be afforded expeditious treatment. The law requires that all claims remanded by the Board 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). _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs