Citation Nr: 1314601	
Decision Date: 05/03/13    Archive Date: 05/15/13

DOCKET NO.  09-42 133A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1.  Entitlement to an effective date prior to March 23, 2007, for the award of service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to an effective date prior to March 23, 2007, for the awards of service connection for scars from shrapnel wounds to the left forearm and left forehead.

3.  Entitlement to an effective date prior to March 23, 2007, for the award of service connection for bilateral hearing loss.

4.  Entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss.

5.  Entitlement to initial compensable evaluations for scars from shrapnel wounds to the left forearm and left forehead.

6.  Entitlement to an initial disability rating for PTSD in excess of 30 percent from March 23, 2007 to October 27, 2009 and in excess of 50 percent since October 28, 2009.

7.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.

8.  Entitlement to an effective date prior to March 23, 2007, for the award of service connection for tinnitus.


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Attorney at law


ATTORNEY FOR THE BOARD

M. C. Graham, Counsel

INTRODUCTION

The Veteran had active duty service from October 1963 to June 1969.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from January and June 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  The January 2008 rating decision granted service connection for PTSD and assigned a 30 percent evaluation, effective March 23, 2007; granted service connection for tinnitus and assigned a 10 percent evaluation, effective March 23, 2007; granted service connection for bilateral hearing loss and assigned a 10 percent evaluation, effective March 23, 2007; and granted service connection for shrapnel scars of the left forearm and left forehead, and assigned 0 percent ratings, effective March 23, 2007.  The June 2008 rating decision denied a claim for entitlement to TDIU.
In a February 2012 rating decision, the RO increased the evaluation assigned to 50 percent for the Veteran's service-connected PTSD from October 28, 2009.  Since the RO did not assign the maximum disability rating possible, this appeal for a higher evaluation remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).


FINDINGS OF FACT

1.  In April 2012, prior to the promulgation of a decision, the Board received a request from the Veteran to withdraw this appeal as to the claims for effective dates prior to March 23, 2007, for the awards of service connection for PTSD, scars from shrapnel wounds to the left forearm and left forehead, and bilateral hearing loss; an initial disability rating in excess of 10 percent for bilateral hearing loss; and initial compensable evaluations for scars from shrapnel wounds to the left forearm and left forehead.  

2.  The Veteran's service-connected PTSD more nearly approximates total occupational and social impairment for the entire period under consideration in this appeal.

3.  The Veteran is unemployable solely as a result of his service-connected PTSD.  

4.  The first evidence in the record indicating an intent to apply for service connection for tinnitus was received on March 23, 2007, more than one year after the Veteran's separation from active duty.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the Veteran's Substantive Appeal on the issues of entitlement to an effective date prior to March 23, 2007, for the award of service connection for PTSD; entitlement to an effective date prior to March 23, 2007, for the awards of service connection for scars from shrapnel wounds to the left forearm and left forehead; entitlement to an effective date prior to March 23, 2007, for the award of service connection for bilateral hearing loss; entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss; and entitlement to initial compensable evaluations for scars from shrapnel wounds to the left forearm and left forehead have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

2.  The criteria for a 100 percent disability rating for PTSD are met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012).

3.  The criteria for a TDIU have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2012).  

4.  The criteria for an effective date prior to March 23, 2007, for the grant of service connection for tinnitus have not been met.  38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Withdrawn Claims

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran submitted a written communication in April 2012 via counsel expressing his desire to withdraw his appeal as to his claims for entitlement to an effective date prior to March 23, 2007, for the award of service connection for PTSD; entitlement to an effective date prior to March 23, 2007, for the awards of service connection for scars from shrapnel wounds to the left forearm and left forehead; entitlement to an effective date prior to March 23, 2007, for the award of service connection for bilateral hearing loss; entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss; and entitlement to initial compensable evaluations for scars from shrapnel wounds to the left forearm and left forehead.  Hence, there remains no allegation of errors of fact or law for appellate consideration with regard to these issues.  Accordingly, the Board does not have jurisdiction to review this appeal as to those issues, and they are dismissed.

II.  Veterans Claims Assistance Act (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).

As the Veteran's PTSD claim has been granted in full, no further notification or assistance is necessary, and deciding the appeal is not prejudicial to the Veteran.

With respect to the earlier effective date claim, in this case, in an April 2007 VCAA letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection for tinnitus, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations.

The tinnitus appeal arises from the initial award of service connection.  In Dingess, the United States Court of Appeals for Veterans Claims (Court) held that, in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated.  It has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Thus, VA's duty to notify in this case has been satisfied.

VA has also secured all available pertinent evidence and conducted all appropriate development.  Specifically, the record shows that VA obtained and associated with the claims file all identified in-service and post-service records.  A VA examination would not assist in the adjudication of the issue of entitlement to an earlier effective date for the grant of service connection for tinnitus.  

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

III.  Initial Rating for PTSD and a TDIU

The Veteran appeals the denial of the assignments of ratings greater than 30 percent prior to October 28, 2009, and 50 percent since that date, for his service-connected PTSD.  Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991).  In Fenderson v. West, 12 Vet. App. 119 (1999), and in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation or an increased rating has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  However, the Board concludes that a uniform rating is warranted.

The Veteran's PTSD is rated under 38 C.F.R. § 4.130's General Rating Formula for Mental Disorders, under which a 50 percent rating is warranted where there is an occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo-typed 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.

A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130, Diagnostic Code 9411.

The symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

In the recently-decided case of Vazquez-Claudio v. Shinseki, 2012-7114 (Fed. Cir. Apr. 8, 2013) the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that 38 C.F.R. § 4.130 "requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment [to the extent listed in the rating criteria at each disability level].  The Federal Circuit further noted that, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment . . . ."  Id.

According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions and the Veteran's capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126(a) (2012).  In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  Id.  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32].

GAF scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in the Veteran's social, occupational or school functioning (e.g., no friends, unable to keep a job).  Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school).  See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes].

The Board recognizes that the evidence of record is not entirely consistent regarding the severity of the Veteran's PTSD.  Nevertheless, the Board ultimately concludes that the Veteran's service-connected PTSD more nearly approximates total occupational and social impairment for the entirety of the claims period.  The Board finds that there is ample evidence that the Veteran's PTSD renders him totally occupationally impaired as found by the 2009 and 2012 evaluation reports from M. L. Cesta, M.D; the fact that the Veteran has reported that he has not worked since 2002; the fact that his available Social Security Administration (SSA) earnings reports show no significant income between 2003 and 2006 (later years are not reported); and the fact that his GAF scores over the appeal period include scores of 50 (May 2007); 45 (September 2007); 35 (October 2009); and 35-40 (reported as current and for the last year in October 2012). 

Indeed, the Board finds the 2009 and 2012 reports of Dr. Cesta to be particularly probative and persuasive as Dr. Cesta's conclusions were based on a review of "the entirety of [the Veteran's] medical records, service records, and ancillary information."  In addition, he interviewed the Veteran clinically for three hours.  It was Dr. Cesta's opinion, after reviewing the VA treatment records during this period, that the Veteran had only "minor improvements with pharmacologic management" in 2007 "but the overwhelming majority of his PTSD symptoms were unchanged despite psychotherapy and aggressive pharmacologic management."

Dr. Cesta found that the Veteran's worsening symptoms, including increased depression, "severely impaired him from engaging in even the most basic day-to-day social interactions let alone occupational engagement."  The Veteran reported that he had difficulty caring for his basic needs "although he would do everything possible to present himself in a reasonable fashion to his treating providers."  Dr. Cesta noted that the VA treatment records showed that the Veteran had some improvement with the use of Remeron in 2011; however, "[i]n no way do these improvement[s] suggest he would be able to work or function in a complex social fashion." 

Dr. Cesta found that the Veteran's capacity to function in an occupational setting had become "completely absent by 2002" and that the Veteran's PTSD was a "pervasive, severe, intractable disease" that was "quite well documented in the medical record."

Further, the Board notes that the September 2007 VA examiner found that the Veteran was "unable to establish and maintain effective work or social relationships."  A June 2011 VA examiner found that the Veteran's PTSD symptoms "have greatly interfered with his marriage and his ability to work."  VA examinations and additional treatment records include on-going problems with recurrent and intrusive thoughts and dreams, extreme irritability, amotivation, hypervigilance, numbing, insomnia, avoidance of situations even remotely reminiscent of previous combat experiences, pervasive anxiety, social isolation and withdrawal, and survivor guilt.

Based on the evidence, the Board concludes that the Veteran's service-connected PTSD more nearly approximates total occupational and social impairment for the entirety of the claims period.

As the Veteran is being awarded the maximum schedular rating of 100 percent due in part to his unemployability for the entirety of the appeal period, there is no need for extraschedular consideration or consideration of a TDIU claim based upon his PTSD.  With respect to the claim for a TDIU for service-connected disability other than PTSD, there is no additional service-connected disability which would serve to support an award of TDIU separate and distinct from his PTSD so as to potentially provide a basis for entitlement to special monthly compensation under 38 U.S.C.A. § 1114(s) (West 2002).  See Bradley v. Peake, 22 Vet. App. 280 (2008).  The Veteran's other service-connected disabilities are:  tinnitus, rated 10 percent disabling; bilateral hearing loss, rated 10 percent disabling; and scars of the left forehead and left forearm, each rated 0 percent disabling.  The Veteran does not contend, nor does the evidence show, that any of these disabilities alone or together would serve to support a separate award of TDIU.  Thus, there is no benefit for obtaining TDIU in addition to the newly assigned total rating.

IV.  Earlier Effective Date for Tinnitus

The Veteran requests an earlier effective date for tinnitus.  Generally, the effective date for an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  If service connection is granted based on a claim received within one year of separation from active duty, the effective date will be the day following separation.  Id.

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.151(a) (2012). The words application and claim are defined by regulation as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p).  Any communication or action that demonstrates an intent to apply for an identified benefit may be considered an informal claim.  38 C.F.R. § 3.155(a).

In this regard, the law is clear that no benefit may be paid before a claim is made.  38 U.S.C.A. § 5101 (West 2002); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) ("[38 U.S.C.A. §] 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to . . . be paid under the laws administered by the Secretary.").  The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999).  Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition.  KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995).

With the above laws and regulations in mind, the record shows that the Veteran separated from military service in June 1969.  His original claim of entitlement to service connection for tinnitus was received by the RO on March 23, 2007.  He was awarded service connection for tinnitus in a January 2008 rating decision effective from March 23, 2007.  Service connection was granted based on medical evidence finding that it was at least as likely as not that the Veteran's tinnitus was secondary to his in-service noise exposure.

Absent earlier claims and a showing of entitlement, the claim for an earlier effective date must be denied.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  In this regard, the record shows that the first time that the RO received any writing from the Veteran following his June 1969 separation from military service in which he voiced a desire to file a claim of service connection for an auditory disability was on March 23, 2007 - his claim of service connection for tinnitus.  See Jones, supra.

The Board acknowledges that the claimant is competent and credible to report the fact that he had problems with ringing in his ears in-service and since that time because these symptoms are observable by a lay person.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  The Board also acknowledges that the RO conceded that the Veteran's current tinnitus was caused by his exposure to noise while on active duty.

However, the records is devoid of any communication from the Veteran or his representative or attorney between the time of the claimant's first experiencing problems with symptoms that have since been diagnosed as tinnitus and the first filing his claim with VA on March 23, 2007, indicating an intent or desire to file claim of entitlement to service connection for auditory disabilities such as bilateral hearing loss and tinnitus.  Id.

As his claim for service connection for tinnitus was received more than one year after his separation from military service, the effective date of the award may be no earlier than the date of receipt of the claim.  38 U.S.C.A. § 5110.  Accordingly, as there is no evidence that shows a claim of service connection for tinnitus was filed prior to March 23, 2007; the claim for an earlier effective date is denied.

The Board also considered the doctrine of reasonable doubt.  However, as the evidence is against the claim, that doctrine is not for application in this case.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Accordingly, the claim for an earlier effective date for the grant of service connection for tinnitus must be denied.


ORDER

The appeal is dismissed as to the claims for entitlement to an effective date prior to March 23, 2007, for the award of service connection for PTSD; entitlement to an effective date prior to March 23, 2007, for the awards of service connection for scars from shrapnel wounds to the left forearm and left forehead; entitlement to an effective date prior to March 23, 2007, for the award of service connection for bilateral hearing loss; entitlement to an initial disability rating in excess of 10 percent for bilateral hearing loss; and entitlement to initial compensable evaluations for scars from shrapnel wounds to the left forearm and left forehead.

A 100 percent rating for PTSD is granted, subject to the regulations and statutes governing the payment of monetary benefits.

A TDIU is denied.  

An effective date prior to March 23, 2007, for the grant of service connection for tinnitus is denied. 



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs