Citation Nr: 1314219 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 98-08 838 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date prior to June 11, 1994 for the grant of entitlement to both a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) and a 70 percent evaluation for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Nancy L. Foti, Esquire ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to March 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama that increased the rating assigned for the Veteran's PTSD from 50 percent disabling to 70 percent disabling, effective January 1, 1998 and granted entitlement to TDIU from January 1, 1998. In an October 2001 decision, the Board denied the Veteran's claim. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court), and, following a joint motion of the Veteran and the Secretary of Veterans Affairs (Secretary), the Court vacated and remanded this case in a January 2002 order. The Board again denied the claim in September 2002, and, following a further appeal from the Veteran and a second joint motion, the Court again vacated and remanded this case in a January 2003 order. The Board then remanded this case back to the RO in December 2003. In November 2004, the Board determined that, based on a July 14, 1997 VA doctor's statement indicating incompetency of the Veteran, the effective date for the grants of TDIU and a 70 percent evaluation for PTSD should be July 14, 1997. The Veteran appealed this denial to the Court, and, in a July 2005 joint motion, the secretary and the Veteran indicated that the July 14, 1997 statement should be considered "new and material evidence" pursuant to 38 C.F.R. § 3.156(b) and that an earlier date of claim should be considered. No further evidentiary development, such as would require a Board remand, was indicated in this joint motion. The Court granted the joint motion in July 2005, and the claim again came before the Board. In a September 2005 decision, the Board granted an effective date of June 11, 1994 for the grant of total disability rating based on individual unemployability due to service- connected disabilities (TDIU) and a 70 percent evaluation for PTSD. The Veteran again appealed the Board's decision to the Court. In a December 2006 Order, the Court remanded the case to the Board for further proceedings consistent with a December 2006 Joint Motion for Remand. The Joint Motion for Remand noted the June 11, 1994 effective date for both of the issues was granted. The issues were remanded for further development in September 2007, and a further Board decision was issued in September 2009. Subsequently, an April 2010 Court Order, based on a September 2009 Joint Motion for remand, vacated the September 2009 Board decision. In a November 2010 decision, the Board denied an effective date prior to June 11, 1994 for a 70 percent evaluation for PTSD. The Veteran again appealed the Board's decision to the Court. In April 2012, the Court issued a decision that remanded the case to the Board for readjudication and issuance of a new decision. This matter is once again before the Board. The Board notes that in November 2012, the Veteran submitted additional evidence "in support of [his] current claim for Ischemic Heart Disease." As this matter is not currently before the Board it is referred to the Agency of Original Jurisdiction (AOJ) for further development. Additionally, entitlement to compensation for skin condition of feet ( now claimed as all over body rash); degenerative joint disease of the back to include osteoarthritis of the cervical and lumbosacral spine; gastric; sleep apnea; bilateral poor eye condition; left eye cataract surgery; and ulcer all as a residual of exposure to CLCW; entitlement to compensation for anemia infection and bleeding colon condition; as well as entitlement to special monthly compensation based on aid and attendance and entitlement to service connection for breathing/respiratory problems (chronic obstructive pulmonary disorder) as due to radiation exposure have been deferred in an August 2012 rating decision and still have yet to be adjudicated. These matters are also referred to the AOJ. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. All relevant evidence necessary to render a decision on the veteran's claim has been obtained by the RO, and the RO has notified him of the type of evidence needed to substantiate his claim. 2. A factually ascertainable increase in PTSD was first demonstrated on an August 30, 1993 VA examination, which has also been construed as an informal claim. 3. There is evidence of record supporting the grant of both TDIU and a 70 percent disability evaluation for PTSD dating from August 30, 1993. CONCLUSIONS OF LAW 1. The criteria for an effective date of August 30, 1993 for the grant of 70 percent disability evaluation for PTSD have been met. 38 U.S.C.A. §§ 5103, 5103A, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2012). 2. The criteria for an effective date of August 30, 1993 for the grant of TDIU have been met. 38 U.S.C.A. §§ 5103, 5103A, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify & Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). In March 2004, August 2005, September 2007, and April 2009, the agency of original jurisdiction (AOJ) sent letters to the Veteran providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The September 2007 letter also provided the notice of the disability rating and effective date regulations, in accord with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No prejudice has been alleged in the timing of these notices, and none is apparent from the record; and the claim was readjudicated in a June 2009 Supplemental Statement of the Case. In addition, the Veteran has had the benefit of numerous prior Board decisions and Court orders which have amply explained to him the relevant law. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining medical records and Social Security records. Therefore, the Board finds that the duty to assist has been met, and no prejudice to the Veteran would ensue from adjudication of this claim at this time. II. Legal Criteria & Analysis 38 U.S.C.A. § 5110 sets forth the statutory guidelines for the determination of an effective date of an award of disability compensation. Except as otherwise provided, the effective date of an evaluation and award of 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 the later. 38 C.F.R. § 3.400. In cases involving increases in disability compensation, the effective date will be the earliest date at which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the date of receipt of the claim will be the effective date. 38 C.F.R. § 3.400(o). The date of outpatient or hospital examination will be accepted as the date of receipt of a claim for increased benefits when such reports relate to an examination or treatment of a disability for which service connection has previously been established. 38 C.F.R. § 3.157(b). A specific claim in the form prescribed by the Secretary of Veterans Affairs (Secretary) must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). The applicable statutory and regulatory provisions require that VA look to all communications from the appellant which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). In the present case, the RO granted service connection for PTSD in October 1986, with a 30 percent evaluation assigned as of November 1984, and increased that evaluation to 50 percent, effective from October 1987, in a November 1987 rating decision. Here it is undisputed that the Veteran did not appeal the RO's October 1986 rating decision that granted service connection and assigned a 20 percent disability rating for PTSD as well as the November 1987 decision that increased the rating to 50 percent disabling, and no new and material evidence was received within a year of the pending claim. Thus, absent clear and unmistakable error (CUE) in the October 1986 and November 1987 rating decisions, which the Veteran does not allege, those determinations are final. 38 U.S.C.A. §§ 7103(a), 7104, 7111, 7266; 38 C.F.R. §§ 3.156(b), 20.1100, 20. 1104, 20.1403, 20.1404 (2012); see Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011) (holding VA has a duty in all cases to determine whether new and material evidence has been received within the appeal period after a decision such that the decision would not have become final under the provisions of 38 C.F.R. § 3.156(b). As such, an effective date prior to November 1987 for the 70 percent rating is precluded. The documentation discussing the Veteran's psychiatric symptoms subsequent to the November 1987 decision included ongoing treatment and counseling records for the Veteran's PTSD, but did not suggest that the Veteran's psychiatric symptoms had increased in severity until his August 30, 1993 VA examination. A June 1988 VA treatment record noted the Veteran's reports of feeling jittery, nervous, pressured, depressed, stressed, and that it was a possibility that he would get violent. A December 1989 VA treatment record noted that the Veteran had complaints of depression and anxiety that began 40 minutes ago he felt that the symptoms were related to the medication he started a month ago for his diabetes mellitus. He reported that he felt calmer than he did before, but was tired and light headed. He reported that he felt bad overall. He indicated that during the anxiety attack, he felt as if the walls were coming in and that he wanted to kill himself. He was diagnosed with acute anxiety attack. He reportedly was calm at the time of the appointment. A May 1990 treatment record indicated that the Veteran previously lost his job due to having flashbacks. He had difficulty with his family relationships, but did not exhibit violence. He was not suicidal. A June 1990 treatment record noted the Veteran's reports of feeling much better and intended to go back to work. He indicated that he has not had flashbacks for three years. In October 1991, the Veteran presented with complaints of depression and wanted to switch his medication. In April, October, November, and December 1990, the Veteran met with a VA vocational rehabilitation counseling psychologist and related that he had worked with the State of Alabama as a corrections officer until December 1989. He indicated that he had to drop out of employment due to his hernia operation and depression. After examination and testing, the counselor found that the veteran indeed had a serious employment handicap, but did not deem him to be unemployable. The record noted that the Veteran would be more ideally suitable in work dealing with data and things rather than people. He could probably train at the technical college level in selective objectives and had been successful in that level of pursuit in the past under Chapter 34. The counseling records indicated that the Veteran recently purchased himself a home. Also, the Veteran expressed an interest in self-employment in the areas of landscaping and lawn management. The records reported that the Veteran remained unchanged and that he wanted to re-enter the job market. The records also indicated that the Veteran received routine psychiatric treatment. Ultimately, the evaluation report reflected that the Veteran asked that his request for training be suspended because he was receiving Social Security Administration disability benefits and that he had been advised by doctors not to attempt any type of work or training at that time. While the above-mentioned VA treatment records acknowledge the difficulty the Veteran had with family relationships and his work, the symptoms reported during this time reflected symptoms more consistent with a finding of considerable impairment in the ability to establish or maintain effective or favorable relationships with people, such that a 50 percent rating would be warranted. The symptoms reported during this time did not reflect that the Veteran's symptoms permanently increased in severity, but rather appeared to have been acute and transitory or related to a change in his medication, as the records also reported that the Veteran felt calmer, much better, and intended to go back to work. Also, the Veteran sought Vocation Rehabilitation counseling and records dated from April to December 1990 reported that the Veteran's symptoms remained unchanged. The symptoms reported in the Veteran's VA treatment and counseling records did not show that the Veteran's symptoms rose to the level that severely impaired his ability to establish and maintaining effective or favorable relationships with people was severely impaired, or the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. Therefore, the Board does not find that this evidence shows symptomatology consistent with a 70 percent evaluation, such that it could be the basis for the grant of an earlier effective date for a 70 percent evaluation for the Veteran's service connected PTSD during this time. Additionally, an August 1991 private hospital treatment indicated that the Veteran did return to work as it noted that the Veteran was still employed as a corrections officer. It was not until the August 1993 VA examination that the Veteran's PTSD symptoms were assessed in greater detail and suggested an increase in severity. On August 1993 VA examination, the examiner noted that the Veteran seemed to be very angry with the VA and the government in general. He despised bureaucracy. The record noted that the Veteran had various jobs and eventually spent about 10 years with the Department of Corrections as a correction officer. The Veteran reported that he had a nervous breakdown in 1986. He indicated that he became psychotically depressed with severe depression, hallucinations, flashbacks, etc. Around that time, he was diagnosed with PTSD and had been on medication since that time. He reported that he is doing much better since he's been on medication. He indicated that he woke up on three occasions and tried to choke his wife. He had five children. He reported that he didn't like to associate with anyone and avoided family get-togethers. He didn't like to go out in public, shopping, etc., unless it was absolutely necessary. Frequently, he went to the mall with his wife to the mall or store and would sit in the car while she went in and took care of business. His wife handled the business and financial matters because he would become confused and has difficulty with math. He reported feelings of paranoia and thought that people were against him. He spent most of his time at home studying the Bible, praying, and thinking. He was basically a loner. He is disturbed by sudden loud noises and didn't like to talk about his experiences in the war. He avoided any type of war movies on television and was not particularly happy about going through this history with the examiner at the time of this examination. He had difficulty with concentrating and had no particular plans for the future. On mental status examination, the Veteran was casually dressed, well groomed, clean appearing heavy set man who was rather quiet, but answered questions relevantly and apparently honestly. There was no speech impairment and no obvious thought disorder. He did not appear to be particularly depressed at the present time, but he indicated that his medication helped with this. He had suicidal ideation, but no attempts. He denied any hallucinations except for the one prolonged episode around 1986 and 1987 for which he was hospitalized. He had no delusions, was oriented in all spheres. There was no indication of memory or recall deficit. His general fund of information seemed excellent. His judgment and insight seemed adequate. In a January 1994 statement relating to a request for a waiver for repayment, the Veteran reported the he was disabled and unable to work, in part, due to his nervous condition. He indicated that his kids come from a dysfunctional family. Based on the examination results, on a private psychiatric evaluation report completed for Social Security Administration disability determination purposes that was associated with the claims file in June 1994, the examiner noted that the Veteran was "unable to relate to others in a work setting." While he could sustain the attention needed to do repetitive tasks, he was "unable to tolerate the stressors and pressures associated with day to day work activities." The prognosis was guarded. The examiner diagnosed chronic and severe PTSD, of delayed onset, and assigned a GAF score of 44. In October 1995, the Veteran requested reconsideration of his PTSD evaluation and entitlement to TDIU. He also submitted a November 1995 vocational evaluation report, which indicates that, despite PTSD symptoms, his profile was "consistent" with work in electronics. The examiner also noted the possibility of the Veteran working in upholstering or as a correctional officer, although the latter occupation was described as "a very stressful environment" which "may perpetuate his emotional problems." A June 1996 VA examination revealed moderate-to-severe PTSD and a GAF between 80 and 90. In July 1997, the RO received a statement from a VA doctor, dated July 14, 1997, indicating that the Veteran had a 50 percent evaluation for PTSD but was "incompetent for VA purposes." In December 1997, the Veteran requested reconsideration of his "disability claim," in view of a current VA hospitalization. Records of this hospitalization, dated from November to December of 1997, indicate a GAF score of 49. Following the receipt of a further statement from the Veteran on January 8, 1998 and a February 1998 VA psychiatric examination showing severe PTSD and a GAF score of 40, the RO, in the appealed April 1998 rating decision, granted both a 70 percent evaluation for PTSD and entitlement to TDIU, both effective as of January 1, 1998. The current appeal, as indicated above, arose from that decision. As noted above, the Board, in November 2004, determined that the July 14, 1997 VA doctor's statement indicating incompetency of the Veteran allowed for an effective date of July 14, 1997, for the grant of a 70 percent evaluation for PTSD. A September 2005 Board decision granted the Veteran an earlier effective date of June 11, 1994, the date of the Veteran's private psychiatric evaluation report noted above. That evaluation revealed severe PTSD, and the examiner indicated that the Veteran was unable to relate to others in a work setting and could not tolerate the stressors and pressures associated with day to day work activities. Moreover, the examiner assigned a GAF score of 44, which, under the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM- IV), is indicative of symptomatology including the inability to keep a job. As such, the Veteran was granted a 70 percent evaluation from the date of that report. However, the Veteran continued to request an effective date earlier than this. Upon a review of the claims file, the Board finds that the August 30, 1993 VA examination may also be construed as the date of his informal claim. The question thus becomes when entitlement to a 70 percent evaluation for PTSD arose. The Board notes that evidence received one year prior to the August 30, 1993 claim may be considered. In this regard however, the Board notes that there is absolutely no psychiatric evidence either constructively of record or associated with the claims file during this period showing that the Veteran would be entitled to a 70 percent rating during this time as previously discussed. The Veteran is currently in receipt of a 50 percent rating, effective October 23, 1987 to June 10, 1994. According to the regulations in effect at that time, a 50 percent rating, contemplated that the ability to establish or maintain effective or favorable relationships with people was considerably impaired. By reason or psychoneurotic symptoms the reliability, flexibility, and efficiency level are so reduced as to result in considerable industrial impairment. A 70 percent rating contemplated that the ability to establish and maintaining effective or favorable relationships with people was severely impaired, or the psychoneurotic symptoms were of such severity and persistence that there was severe impairment in the ability to obtain or retain employment. A 100 percent rating contemplated that the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic, and explosions of aggressive energy resulting in profound retreat from mature behavior. Demonstrably unable to obtain or retain employment. Additionally, while there are some Social Security records available for this period, there is no psychiatric evidence from this specific time period showing any psychiatric findings sufficient to warrant a 70 percent rating. In the current appeal, the earliest evidence of record that suggested an increase in severity was the August 30, 1993 VA examination. The examination report documented symptoms that had not been previously reported such as waking up and choking his wife, avoiding family get togethers, not associating with anyone, staying at home most of the time, feelings of paranoia and that people were against him, being a loner, being disturbed by loud noises, not wanting to associate with anyone and avoided family get-togethers, as well as suicidal ideations. Such symptoms are indicative of a severe social impairment. While the August 30, 1993 VA examination did not address, the Veteran's occupational impairment, the Veteran reported in January 1994 correspondence that he was disabled and not able to work due to his nervous condition, which was consistent with the findings of the private psychiatric evaluation report completed for SSA disability determination purposes that was associated with the claims file in June 1994. In regards to the Veteran's January 1994 statement, the Board notes that the Veteran is competent to report that his psychiatric symptoms interfered with his ability to work. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Falzone v. Brown, 8 Vet. App. 398, 405 (1995); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Additionally, there is no evidence of record to directly contradict the Veteran's statement and records subsequently associated with the claims file supported his contentions. The Board is aware that several subsequent examination reports indicated a milder PTSD symptomatology picture and contained higher GAF scores. As such, arguably there is evidence both for and against an earlier effective date of August 30, 1993, for the grants of a 70 percent evaluation for PTSD and TDIU. That notwithstanding, VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). After resolving all doubt in the Veteran's favor under 38 U.S.C.A. § 5107(b), the Board concludes that he met the criteria for both a 70 percent evaluation for PTSD and entitlement to TDIU as of August 30, 1993, the date of the his VA examination and informal claim. Accordingly, August 30, 1993, should be the effective date for those two noted grants. To that extent, the appeal is granted. The Board notes that additional records considered in conjunction with the Veteran's January 1990 application for SSA disability benefits were not associated with the claims file until October 2007 and any VA treatment records that would be considered constructively of record have been reviewed and considered in the above grant. Additionally, the Board notes that the Veteran was awarded disability benefits for PTSD and recurrent major depression and that the disability began in December 1989. In January 1990 correspondence, Dr. C.H.S. reported that the Veteran was suffering from severe anxiety and Major Depression, which were an outgrowth of his long-standing PTSD. The physician believed that the Veteran's condition was worsened by the nature of his employment as a correctional officer, which was a position that carried a great deal of stress. The physician reported that he spoke with the Veteran about considering employment change and that the Veteran felt considerably better. However, the physician noted that the Veteran was not trained or equipped for other employment and at this point he could not cope with his current job or for that matter any job. In February 1990 correspondence, Dr. C.H.S. reported that the Veteran worked with the State of Alabama Board of Corrections from 1981 to 1990, at which time he applied for medical retirement. Additionally, in a May 1994 daily activities questionnaire, a neighbor of the Veteran indicated that he has known the Veteran for 18 years, and would visit him 2-4 days a week. He indicated that the Veteran would spend his days sitting in a room, watching walls, and that he did not have a normal sleeping pattern, getting no more than 4 hours of sleep a day. That friend indicated that the Veteran read seldomly, and had a poor attention span. He had been known to have temper tantrums on many occasions. This person reported that the Veteran took care of his three grandchildren. He went to church seldomly. He felt that the Veteran had problems with short term memory, but not long term memory. He reported that the Veteran had been known to hallucinate, but did not provide examples or a further explanation of this behavior. While the correspondence from Dr. C.H.S. and the Veteran's neighbor describe the Veteran's symptoms, as previously mentioned such records were not constructively of record and not associated with the claims file until October 2007. The remaining question is when did the increase in disability become factually ascertainable. The first point at which the Veteran's symptoms appeared to have increased in severity was on the August 30, 1993 VA examination. However, records received at a much later date reflect that the Veteran was unemployable and had severe social impairment prior to the August 30, 1993 VA examination. Also, by the Veteran's report, the increase was factually ascertainable more than one year prior to the August 30, 1993 VA examination. The effective date is therefore, the date of claim, which in this case is the same date as the VA examination, or August 30, 1993. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1),(2); VAOPGCPREC 12- 98 (1998). An effective date of August 30, 1993, for the grant of a 70 percent disability evaluation for PTSD and TDIU is warranted. ORDER Entitlement to an effective date of August 30, 1993 for a 70 percent evaluation for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an effective date of August 30, 1993 for the grant of entitlement to both TDIU is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs