Citation Nr: 1317175	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  01-01 300A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) prior to August 9, 2011.  

2.  Entitlement to an effective date earlier than November 18, 1999 for the award of a total disability rating for compensation purposes based on individual unemployability (TDIU).  


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Jarrette A. Marley, Associate Counsel


INTRODUCTION

The Veteran had active service from April 1968 to March 1970.  

The matter of entitlement to an earlier effective date for TDIU initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2000 rating decision by the RO that granted TDIU, effective from November 18, 1999.  The Veteran subsequently disagreed with the effective date assigned, giving rise to the current appeal.  A video conference hearing was held before the undersigned Veterans Law Judge (VLJ) in February 2002; a transcript of the hearing is associated with the claims file.  In February 2002, the Board remanded the matter for additional development.  

In April 2004, the Board, in part, denied the claim for an earlier effective date for TDIU.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In a September 2006 decision, the Court vacated, in part, the April 2004 Board decision concerning the claim for an earlier effective date for TDIU, and remanded the matter to the Board for further action.  In March 2007, the Board remanded the matter for additional development.  

In January 2009, the Board again denied the claim for an earlier effective date for TDIU.  The Veteran again appealed the Board's decision to the Court.  In an April 2009 Joint Motion for Remand (Joint Motion), the Court vacated the Board's January 2009 decision and remanded the matter for compliance with the terms of the Joint Motion.  In July 2010, the Board remanded the matter for additional development.  

The matter of entitlement to a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) comes before the Board on appeal from a July 2006 rating decision by the RO that continued a 50 percent disability rating for PTSD.  The matter was previously before the Board in January 2009 when it was remanded for additional development.  

In August 2012, a rating decision granted an increased (100 percent) rating for PTSD, effective August 9, 2011 (date of VA examination), which is the maximum schedular rating available for this disability.  Nevertheless, as the 50 percent evaluation was in effect for the period prior to August 9, 2011, the Board must still determine whether a higher rating is warranted for that period.  The claim has been characterized accordingly.  

Finally, the Board notes that in a January 2009 decision, the Veteran was awarded special monthly compensation based on the need for the regular aid and attendance of another person.  Hence, the matter is no longer before the Board.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008) (holding that VA's 'well-established' duty to maximize a claimant's benefits includes the award of SMC benefits when a veteran becomes eligible without need for a separate claim).  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The Veteran's PTSD has been manifested by total occupational and social impairment.  

2.  The RO received a claim of entitlement to TDIU benefits on January 18, 2000, and associated treatment records reflect low back complaints dated November 18, 1999.  

3.  The evidence of record shows that the Veteran has been totally and permanently disabled since at least November 1999.  

4.  The record includes no pending claims for increased ratings or unresolved claims, whether formal or informal, or for TDIU prior to January 18, 2000.  


CONCLUSIONS OF LAW

1.  The criteria for the assignment of a 100 percent rating for the Veteran's service-connected PTSD have been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (Code) 9411 (2012).  

2.  The criteria for an effective date prior to November 18, 1999, for entitlement to TDIU benefits have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.157, 3.400, 4.16, 4.19 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A. Veterans Claims Assistance Act of 2000 (VCAA)

Regarding the increased rating claim for PTSD, inasmuch as this decision grants in full his claim, there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless.  

Regarding the earlier effective date for TDIU claim, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required.  See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  As such, no discussion of VA's duty to notify is necessary.  

The Board also finds that all necessary development of evidence has been completed.  VA has obtained the Veteran's available post-service treatment records, including records from the Social Security Administration (SSA), and he has been provided appropriate VA examinations.  The AMC/RO has substantially complied with the July 2010 Board remand instructions.  See Stegall v. West, 11 Vet. App. 268 (1998).  Specifically, a February 2011 Formal Finding of Unavailability reflects that requested VA treatment records from Miami VA Medical Center (VAMC), Bay Pines VAMC, Riviera Beach VA Outpatient Clinic, and vocational rehabilitation records are unavailable.  

The Veteran has also been afforded a hearing before the Board in which he presented testimony regarding the issues decided herein; he was represented during that hearing by a service representative.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  

In the present case, the VLJ asked specific questions directed at identifying whether there was any additional outstanding evidence to substantiate the Veteran's claim for an earlier effective date for TDIU, and to identify the basis for his claim.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim.  As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been met.  

Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Accordingly, the Board finds that the duty to notify and the duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal.  




B. Legal Criteria, Factual Background, and Analysis

Increased Rating for PTSD

In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability.  Separate diagnostic codes identify the various disabilities.  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.  

While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994).  That being said, the Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Historically, a December 2001 rating decision granted service connection for PTSD, rated 50 percent disabling, effective from December 12, 2000.  The Veteran filed a claim for increase in April 2006.  

PTSD is rated under 38 C.F.R. § 4.130, Code 9411, which provides for a 50 percent rating where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex command; 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.  

To warrant a 70 percent rating, the evidence must show 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; speech intermittently illogical, obscure, or irrelevant; 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); and inability to establish and maintain effective relationships.  

A 100 percent rating is warranted when the evidence shows 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.  

Ratings are assigned according to the manifestation of particular symptoms.  However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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).  

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of all psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a).  The rating agency shall assign an evaluation 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.  However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment.  38 C.F.R. § 4.126(b).  

The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Richard v. Brown, 9 Vet. App. 266, 267 (1996).  A score of 41 to 50 is assigned where there are "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994).  A score of 51 to 60 is appropriate where there are "[m]oderate 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)."  Id.  

It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances.  38 C.F.R. § 4.21.  

In April 2006, the Veteran filed the instant claim for increase for his service-connected PTSD.  

On June 2006 VA PTSD examination, the Veteran reported nightmares as often as three times per week, waking up in night sweats and often needing to get out of bed.  He indicated he avoids crowds and feels very anxious and panicky when in public.  He also related having suspicious, paranoid feelings about what other people are thinking or saying.  He reported feeling depressed and very frustrated, with frequent memories of disturbing experiences in Vietnam - his eyes became moist while addressing some of the memories.  On mental status examination, the Veteran's speech was fluent with slow rate and low volume.  There were no noted problems with word finding.  His mood was miserable and he felt depressed, frustrated and sometimes quite irritated.  His affect was compatible with his depressed mood.  Thought processes were slow but logical and coherent with no signs of delusions or bizarre ideation.  He was alert and correctly oriented but needed time to identify the season.  There appeared to be no acquired cognitive disability, but his fundamental intelligence and benefit from education seemed limited.  It was noted that the Veteran had many severe symptoms of PTSD, including flashbacks, nightmares, night sweats, social isolation and reactive anger.  The examiner further opined that it is believed the Veteran's PTSD symptoms have rendered him vocationally incompetent.  The diagnoses were PTSD, chronic, and mood disorder associated with physical injury and limitations.  A GAF score of 50 was assigned.  

On January 2008 VA PTSD examination, it was noted that the frequency and severity of the Veteran's PTSD symptoms were at a similar level as the previous examination in 2006, although the Veteran reported more subjective distress over his symptoms in the past two years.  He indicated he continues to have nightmares and flashbacks approximately two to three times per week.  He also continues to have hypervigilance and hyperarousal symptoms.  He avoids loud noises and war movies.  He spends most of his time watching television and he will sometimes read a book.  It was noted that he has moderate social impairment from his PTSD symptoms.  On mental status examination, the Veteran was alert and oriented in all spheres.  He was appropriate groomed.  Speech was of normal rate, volume and tone.  His mood was dysthymic with constricted affect.  His thoughts were linear and goal-directed without flight of ideas or looseness of associations.  There was no suicidal or homicidal ideation, intent or plan.  There were no auditory, visual, or tactile hallucinations, and the Veteran did not appear to respond to internal stimulus.  His cognition appeared intact, and his insight and judgment were fair.  The diagnosis was PTSD.  A GAF score of 50 was assigned.  

On August 9, 2011 VA PTSD examination, the Veteran's wife reported he has been making increasing frequent suicidal statements.  She also reported she has become afraid that he will harm her when he becomes angry.  She indicated that he does not sleep.  The Veteran reported frequently being physically aggressive with his wife when he is irritable.  His symptoms were found to include depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control; and intermittent inability to perform activities of daily living.  The examiner provided a diagnosis of PTSD, and assigned a GAF score of 45.  The examiner also found the Veteran's level of occupational and social impairment due to his PTSD was total occupational and social impairment.  

Based on the evidence of record, the Board finds that the Veteran's PTSD more nearly approximates the criteria for a 100 percent rating.  The Veteran exhibits symptoms of recurrent distressing dreams, hypervigilance, paranoia, suicidal ideation, panic attacks, impaired judgment, obsessional rituals which interfere with routine activities, impaired impulse control, chronic sleep impairment, memory loss, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships.  The Veteran's GAF scores on VA examination have ranged from 45 to 50 during the appellate period.  The Board also finds that his symptoms were fairly consistent throughout the appellate period; therefore, the 100 percent rating is granted for the entire appeal period.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  

As the Board finds that the Veteran's PTSD approximates a maximum, 100 percent rating for the entire appeal period, the Veteran's appeal has been granted in full.  

Earlier Effective Date for TDIU

The Veteran contends that an effective date for the award of TDIU is assignable prior to November 18, 1999.  

A TDIU rating may be assigned where a claimant's schedular disability rating is less than total if it is found that the claimant 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 service-connected disabilities, provided that one of those disabilities 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. §§ 3.340, 3.341, 4.16.  

The evidence must show that a claimant is incapable "of performing the physical and mental acts required" to be employed.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Thus, the central question is "whether the [claimant's] service connected disabilities alone are of sufficient severity to produce unemployability," and not whether the claimant could find employment.  See Van Hoose, 4 Vet. App. at 363; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to a claimant's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363.  

TDIU may be granted on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  This means that in exceptional cases, where there evaluations provided by the rating schedule are found to be inadequate, a TDIU claim may be referred for extraschedular consideration.  38 C.F.R. § 3.321(b).  The Board does not have jurisdiction to assign an extraschedular rating in the first instance.  VAOPGCPREC 6-96 (Aug. 16, 1996); Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Rather, consideration of whether an extraschedular rating is assignable must be referred to the RO, who requests such consideration by the Under Secretary for Benefits or by the Director of Compensation and Pension Services.  

Generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.38 U.S.C.A. § 5110(a); Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999).  An effective date for increased disability compensation, which includes a TDIU rating, shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, and an application for TDIU is received within one year from such date.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Norris v. West, 12 Vet. App. 413, 420 (1999).  If the increase occurred more than one year prior to the claim, the increase is effective the date of claim; if the increase occurred after the date of claim, the effective date is the date of increase.  38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § (o); VAOPGCPREC 12-98 (1998).  "An effective date earlier than the date of claim may be assigned if an increase in disability is shown within the one year ("look-back") period prior to the receipt of a claim, but not where the increase is shown prior to the one-year period preceding the receipt of the claim."  See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).  

A specific claim in the form prescribed by VA 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); 38 C.F.R. § 3.151.  A "claim" is 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 indicating an intent to apply for one or more benefits administered by VA may be considered an informal claim.  See 38 C.F.R. § 3.155(a).  The benefit sought must be identified, though it need not be specific.  See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  All filings by a claimant must be construed based on a liberal reading.  See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that "[i]n direct appeals, all filings must be read 'in a liberal manner' whether or not the veteran is represented").  

Once a veteran (1) submits evidence of a disability, (2) makes a claim for the highest rating possible, and (3) submits evidence of unemployability, an informal claim for TDIU is raised.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); 38 C.F.R. § 3.155; see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (Fed. Cir. 2009) (holding that an inferred claim for TDIU is raised as part of an increased rating claim only when the Roberson requirements are met).  A claim for TDIU may be a freestanding claim, but may also be a claim for an increased rating (a total rating based on individual unemployability) for the underlying disability(ies).  Such a claim may be expressly raised (e.g., by filing a VA Form 21-8940) or "reasonably raised by the record," and the claim may be filed as a component of either the initial claim or as a claim for an increased rating for a service-connected disability.  If a veteran asserts entitlement to TDIU during adjudication of the issue of entitlement to service connection or during the appeal of the initial evaluation assigned, the issue is part of the underlying claim for an increased initial evaluation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also Norris v. West, 12 Vet. App. 413, 420 (1999).  

Furthermore, according to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital can be accepted as an informal claim for increased benefits.  See Servello, 3 Vet. App. at 199.  The date on the VA outpatient or hospital examination will be accepted as the date of claim.  38 C.F.R. § 3.159(b).  When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim.  38 C.F.R. § 3.159(b)(2).  

A "report of examination or hospitalization" under § 3.157(b) should "indicate that [a] veteran's service-connected disability [has] worsened since the time it was last evaluated."  Massie v. Shinseki, 25 Vet. App. 123, 134 (2011).  Moreover, the term "report of examination" under § 3.157(b) "implies that the medical record in question must describe the results of a specific, particular examination."  A letter may qualify if it, for instance, was "generated in connection with any particular VA medical examination" rather than, for example, a "claim for Social Security disability benefits that was pending at the time it was written."  Massie, 25 Vet. App. at 133.  Other considerations include whether the letter relates "the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation," rather than "present[ing] a very short summation of [the Veteran's general condition, as [the physician] had observed it over" time.  Id.  

In making such determinations, the Board must consider all of the evidence, including that received prior to previous decisions.  Hazan v. Gober, 10 Vet. App. 511 (1997).  

At the outset, for the sake of clarity, the Board finds that it must consider the finality of the rating decisions prior to the April 2000 rating decision on appeal.  To the extent that such may not have been considered by the RO, the Board recognizes that 38 C.F.R. § 19.9(b)(2) provides that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction.  The Board notes that while the validity of this regulation has been challenged, the Federal Circuit specifically upheld the regulation in Disabled American Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1348-49 (Fed. Cir. 2003).  

The record reflects that, prior to the April 2000 rating decision granting TDIU, a January 1980 rating decision granted an increased (60 percent) rating for herniated nucleus pulposus; a May 1980 rating decision continued the 60 percent rating for herniated nucleus pulposus; an October 1980 rating decision denied entitlement to TDIU; a June 1983 rating decision denied entitlement to TDIU; a July 1985 rating decision continued the 60 percent rating for herniated nucleus pulposus; and a January 1986 rating decision continued a 60 percent rating for herniated nucleus pulposus.  

Further, while the Veteran has raised the issue of clear and unmistakable error (CUE) in the prior rating decisions.  This claim was previously denied.  The Veteran has not otherwise specifically raised the issue of CUE in the January 1980, May 1980, June 1983, July 1985, and January 1986 rating decisions.  Additionally, review of the record also does not show that, within one year of each of these determinations, the Veteran expressed disagreement with the determination in question, or that any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 20.201; see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011).  As such, the January 1980, May 1980, October 1980, June 1983, July 1985, and January 1986 rating decisions are final.  

In reaching this conclusion with respect to the finality of the Veteran's herniated nucleus pulposus claim that was adjudicated in July 1985 and January 1986, the Board notes that the Veteran submitted in conjunction with his claim adjudicated in the July 1985 rating decision, a June 1985 letter from the SSA notifying him of the award of disability benefits.  Such letter was considered in the July 1985 rating decision.  Notably, the RO did not seek any potentially outstanding SSA records.  The Board recognizes that in Bell v. Derwinski, 2 Vet. App. 611 (1992), the Court held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are constructively part of the record before the Secretary and the Board, even where they were not actually before the adjudicating body.  However, the Bell doctrine is not applicable to the case at hand because the rating decisions in question were rendered prior to Bell in 1992.  See Damrel v. Brown, 6 Vet. App. 242, 246 (1994); Lynch v. Gober, 11 Vet. App. 22, 29 (1997) (rejecting constructive possession argument for cases decided prior to Bell), vacated and remanded on other grounds sub nom. Lynch v. West, 178 F.3d 1312 (Fed. Cir. 1998), reinstated by Lynch v. West, 12 Vet. App. 391 (1999) (per curiam order).  

To the extent the Veteran alleges that he is entitled to an effective date in 1970 for TDIU benefits, the Board notes that upon his discharge from active duty in March 1970, the Veteran filed a claim for VA benefits and entitlement to service connection for lumbosacral strain and hemorrhoids, which were granted and assigned 10 percent and noncompensable disability ratings respectively.  Neither the Veteran's April 1970 claim nor the medical evidence of record suggests that the Veteran was unable to work.  Therefore, the Board concludes that the Veteran did not file a claim of entitlement to TDIU benefits in 1970.  As no claim for TDIU benefits was filed in 1970, and there was no evidence of unemployability, the Veteran's assertion that he is entitled to an effective date in 1970 is without merit.  See 38 C.F.R. § 3.400.  

To the extent the Veteran alleges that he is entitled to an effective date in 1979 for TDIU benefits, the Board notes that the Veteran filed a claim for an increased rating for his service-connected back disability and indicated that he had lost work.  As such, the Veteran first raised a claim of entitlement to TDIU in August 1979.  See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  This claim of entitlement to TDIU was adjudicated in a May 1980 rating decision.  The benefit sought was denied.  The Veteran did not express disagreement with the rating decision within one year of his notification of this determination and, as such, the decision became final.  

While additional VA medical records were constructively received within one year of the October 1980 rating decision that denied TDIU, those records did not address the Veteran's unemployability or show that his service-connected disabilities had worsened such that a higher evaluation was warranted.  Thus, the Board finds that the records were not material to the underlying claim.  That is, the medical reports, by themselves or when considered with the previous evidence of record, did not relate to an unestablished fact necessary to substantiate a claim for an increased rating or for TDIU.  Accordingly, the Board finds that the additional evidence was not new and material under the provisions of 38 C.F.R. § 3.156(b), for the purposes of establishing a pending claim.  

Notably, in April 2010, the Court vacated the Board's January 2009 decision denying an earlier effective date for TDIU to secure any outstanding VA treatment records, and to determine whether any such VA treatment records constitute an informal claim that may entitle the Veteran to an earlier effective date.  The VA treatment records that have been obtained pursuant to the Board's July 2010 remand instructions, and the VA treatment records associated with the claims file, are not consistent with an informal claim for increased benefits under 38 C.F.R. § 3.157(b).  Such records reflect complaints of, and treatment for, back pain, as well as x-rays and CT scans.  These VA treatment records, however, do not indicate that the Veteran was unemployable due to his service-connected back and/or hemorrhoid disabilities.  Moreover, these VA treatment records do not indicate that the Veteran's service-connected back and/or hemorrhoid disabilities had worsened in severity.  As noted above, VA treatment records merely showing treatment for the Veteran's service-connected back are insufficient to constitute an informal claim for increased benefits under 38 C.F.R. § 3.157(b).  As the Court stated in Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), such an interpretation of § 3.157(b), as the Veteran appears to argue, would produce an absurd result by unnecessarily burdening VA by requiring it to treat every such medical record as an informal claim for an increased disability rating.  Hence, to the extent there were outstanding VA treatment records, none of the records are consistent with an informal claim for increased benefits under 38 C.F.R. § 3.157(b).  

To the extent the Veteran's representative argues that an October 1988 VA treatment record constitutes an informal claim for increased rating for the Veteran's service-connected back disability, the Board finds, as a finder of fact, that such does not constitute a "report of examination" under 38 C.F.R. § 3.157(b).  Specifically, the treatment record only notes the Veteran's complaint of acute back pain after bending over at home.  The physical examination performed was significantly limited, and x-rays of the lumbar spine in conjunction with the treatment record are consistent with x-rays obtained in prior rating decisions.  See, e.g., September 1985 VA x-rays of the lumbar spine.  Hence, the Board finds that an informal claim for increased benefits for the Veteran's service-connected back disability was not pending as 1988.  Thus, an earlier effective date is not assignable based on VA treatment records as an informal claim for increase.  See 38 C.F.R. § 3.157(b); Gaston v. v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).  

Similarly, pertinent private treatment records (other than SSA records) were not received prior to November 18, 1999, which precludes the assignment of an earlier effective date on the basis of evidence from a private medical provider.  See 38 C.F.R. § 3.157(b)(2).  

Finally, the Board notes that there are SSA records which show the Veteran was deemed to have been unemployable primarily due to his back problems as early as 1981.  Additional records reflect that the Veteran was deemed unemployable due to his service-connected disabilities as early as 1979.  Similarly, letters from employers dated in the 1980's show that the Veteran was not hired or was otherwise unable to work due to his service-connected back disability.  However, since this evidence shows the increase in disability occurred more than one year prior to the January 2000 claim at issue, it cannot provide a basis for awarding an effective date earlier than that established by the RO.  Accordingly, the appeal for an award of an effective date prior to November 18, 1999 for the award of TDIU benefits is denied.  







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ORDER

Subject to the law and regulations governing payment of monetary benefits, a rating of 100 percent for PTSD is granted for the entire appeal period.  

An effective date prior to November 18, 1999, for the award of TDIU benefits is denied.  



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs