Citation Nr: 1317260 Decision Date: 05/28/13 Archive Date: 06/28/13 DOCKET NO. 10-42 088 DATE MAY 28 2013 On appeal from the Department of Veterans Affairs Regional Office in White River Junction, Vermont THE ISSUES 1. Entitlement to an effective date earlier than September 17, 2008, for the grant of a 100 percent rating for posttraumatic stress disorder (PTSD) with depression. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 17,2008. REPRESENTATION Appellant represented by: Stan Brinkman, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to March 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which granted the Veteran a 100 percent rating for his service connected PTSD, effective September 17,2008. A notice of disagreement was received in November 2008; a statement of the case was issued in August 2010; and a substantive appeal was received in October 2010. The Board notes that service connection for PTSD was granted by way of a December 2006 rating decision. The RO granted a 30 percent rating at that time, which was effective March 2, 2006 (the date of the claim). The RO issued an August 30, 2007 rating decision in which it continued that 30 percent rating. The Board notes that the Veteran has raised the issue of whether there was clear and mistakable error (CUE) in the rating decisions dated December 15, 2006 and August 30, 2007. Consequently, the issue was previously framed to include the issue of CUE. However, the Board notes that the RO issued an August 2010 rating decision in which it already acknowledged that there was CUE in each of those decisions. Consequently, in the August 2010 rating decision, the RO increased the Veteran's rating to 70 percent effective March 2, 2006. Since the RO already acknowledged CUE in the aforementioned rating decisions, the issue of CUE is deemed to no longer be a component of the instant appeal. The Board also notes that in its November 2008 rating decision, the RO found that the issue of entitlement to a TDIU was rendered moot (in light of the fact that the RO granted a 100 percent rating on a schedular basis). However, now that CUE has been found in the December 16, 2006 and August 30,2007 rating decisions, and the -2- Veteran is in receipt of a 70 percent rating effective March 2,2006, it raises the issue of whether a TDIU is warranted from that date. Consequently, the Board has added the issue. The Veteran presented testimony at a Board hearing in May 2011. A transcript of the hearing is associated with the Veteran's claims folder. FINDINGS OF FACT 1. Prior to September 17, 2008, the Veteran's PTSD was not manifested by 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Consequently, entitlement to a 100 percent rating for PTSD did not arise prior to September 17, 2008. 2. Prior to September 17, 2008, the record fails to show that the Veteran's service connected disabilities precluded him from securing and following substantially gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. Entitlement to an earlier effective date for a 100 percent rating for PTSD is not warranted. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. 2. Prior to September 17, 2008, the criteria for a TDIU due to service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). -3- REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. May field v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfleld v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's earlier effective date claim arises from an appeal of the granting of a 100 percent rating. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required under the VCAA. -4- Veterans Claims Assistance Act of 2000 (VCAA) - Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a May 2011 Board hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff’d, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183(2002) Earlier Effective Dates Except as otherwise provided, the effective date for an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Unless specifically provided, such determination is made on the basis of the facts found. 38 C.F.R. § 3.400(a). -5- The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date for the assignment of an increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. 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. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for completion. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157. -6- 38 C.F.R. § 3.157 (b)(2), specifically indicates that the date on which evidence is received from a private physician or layman is the date which will be used for effective date purposes. In this case, the Veteran filed his claim for service connection in March 2006. The effective date for the Veteran's 100 percent rating will either be the date of the service connection claim, or the date that entitlement arose, whichever is later. Consequently, the Board must determine if the Veteran was entitled to a 100 percent rating for PTSD prior to September 17, 2008. At the Veteran's October 2006 VA examination, he reported that he spent the past 10 years working as a truck driver; but he had not worked since November 2005 due to a back injury (for which he is receiving Workers Compensation benefits). He stated that he had 6 children from 3 wives. He had been distant with his children, but recently began seeing one of his sons on a regular basis. He reported having few friends, and had one suicide attempt in which he pointed a gun at his head. He no longer owned any guns. Upon examination, the Veteran had no impairment of thought process or communication other than being slightly circumstantial at times. There was no evidence of delusions or hallucinations. He had fair eye contact. He had some psychomotor slowing; but he was cooperative with the interviewer. He had no inappropriate behaviors. In addition to the one suicide attempt, he reported that at one point, he thought about killing his family. The Veteran was oriented to person, place, and time. He complained of poor short-term and long term memory. He was not obsessive or ritualistic. His rate and flow of speech were unremarkable. He did not describe panic attacks. He complained of depressed mood. There was no evidence of impaired impulse. He stated that he awakes easily during the night due to noises. He reported a hyper startle response and hypervigilance. The examiner noted that the Veteran's PTSD symptoms were severe and interfered with his ability to relate to others (as evidence by three divorces and current social isolation). The examiner stated that the Veteran has had significant psychosocial functional status problems and quality of life issues. However, he noted that the Veteran has generally been able to sustain employment when the work did not -7- involve interactions with other people. He assigned a Global Assessment of Functioning (GAF) score of 50 due to PTSD and 55 due to major depressive disorder. A GAF of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social occupational or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well with some meaningful interpersonal relationships. A GAF of 51-60 indicates 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). A GAF of 41-50 indicates serious 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). A GAF of 31-40 indicates 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). A GAF of 21-30 indicates behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g. sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g. stays in bed all day; no job, home, or friends.) American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) (Fourth Edition); see 38 C.F.R. §4.130(2012). At the Veteran's July 2007 VA examination, he once again reported that he had not worked since he injured his back in November 2005. His social psychosocial functional status was poor. He reported that he had one friend, and that he continued to see one of his sons regularly. His routine responsibilities of self-care were below average. He had limited social relationships and no leisure pursuits. Upon examination, there was no impairment of thought process or communication. There was no evidence of delusion or hallucinations. He maintained fair eye contact. He was cooperative with the interviewer. He reported occasional suicidal thoughts; but denied any current plan or intent. He denied homicidal ideation. He -8- was able to maintain minimal personal hygiene and other basic activities of daily living. He was oriented to person, place, and time. He complained of short-term and long-term memory. He was not obsessive or ritualistic. His rate and flow of speech were unremarkable. He did not describe panic attacks; and there was no evidence of impaired impulse control. He complained of depressed mood. He reported mid cycle awakenings every hour (some of which were due to nightmares about Vietnam). The examiner assessed a GAF score of 50. She found that the Veteran's functional status and quality of life were relatively unchanged since his most recent exam. She stated that his PTSD signs and symptoms resulted in significant deficiencies in most areas (including work, family relations, thinking, and mood). She also opined that, given the Veteran's difficulty being around others, it is likely that the Veteran's PTSD symptoms would interfere with his occupational functioning if he were working. In order to warrant a 100 percent rating for PTSD, the disability must be manifested by 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The Board finds that prior to September 17, 2008, the Veteran's PTSD symptoms were not severe enough to warrant a 100 percent rating. The July 2007 VA examiner found that the Veteran's PTSD symptoms resulted in significant deficiencies in most areas (including work, family relations, thinking, and mood). She did not opine that the Veteran's symptoms resulted in total occupational and social impairment. Moreover, the Veteran displayed none of the enumerated symptoms for a 100 percent rating (no gross impairment in thought processes or communication; no persistent delusions or hallucinations; no grossly inappropriate behavior; etc.). Total occupational and social impairment was not found until the Veteran underwent a VA examination on October 28, 2008. As noted earlier, the effective date for an evaluation and award of compensation based on an original claim or is the date of receipt of the claim or the date -9- entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In this case, the original claim for service connection was received on March 2, 2006; and entitlement to a 100 percent rating did not arise until the VA examination that took place on October 28, 2008. The RO granted a 100 percent rating effective September 17, 2008 because it received a correspondence from the Veteran on that date that constituted a new, increased rating claim. In any case, the Board finds that a 100 percent rating for PTSD did not arise prior to September 17, 2008. Consequently, an earlier effective date is not warranted. TDIU VA will grant entitlement to a TDIU when the evidence shows that a Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in a Veteran's case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not -10- be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran has been granted a 100 percent schedular rating effective September 17, 2008. In order to warrant entitlement to a TDIU prior to September 17, 2008, his service connected disabilities must have been so severe that was impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Prior to September 17, 2008, the Veteran was service-connected for the following disabilities: PTSD, rated 70 percent disabling; Type 2 diabetes, rated 20 percent disabling; and peripheral neuropathy of the left and right lower extremities, each extremity rated 10 percent disabling. Prior to September 17, 2008, his combined disability rating was 80 percent. The central question is whether the Veteran's service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. In the November 2008 notice of disagreement, the Veteran's representative stated that that the Veteran made verbal and written statements that he could not work due to his service connected disabilities. The Board finds the opposite to be true. In the Veteran's March 2006 claim, the Veteran indicated that he was receiving workers compensation due to a non-service connected back disability. In both his October 2006 and July 2007 VA examinations, he stated that he has not been able to work since sustaining a back injury. The Board notes that the July 2007 VA psychiatric examiner opined that, given the Veteran's difficulty being around others, it is likely that the Veteran's PTSD symptoms would interfere with his occupational functioning if he were working. Likewise, the July 2007 peripheral nerves examiner stated that the Veteran's peripheral nerves would limit his ability for employment if sedentary work did not allow for frequent periods of getting up to walk around. The Board notes that the Veteran was employed for 10 years as a truck driver. The Veteran would have been able to continue substantially gainful occupation as a truck driver if not for his nonservice-connected back disability. Again, it was not until the worsening of his -11- psychiatric symptoms, as reflected in the October 2008 VA examination, that his PTSD precluded gainful employment. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for entitlement to a TDIU prior to September 17, 2008 must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER Entitlement to a rating of 100 percent for PTSD or to a TDIU earlier than September 17, 2008, is denied. ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals -12-