Citation Nr: 1317296 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 10-48 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an effective date earlier than June 3, 2003 for the grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than June 3, 2003 for the grant of entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Joseph Moore, Attorney ATTORNEY FOR THE BOARD K. Kordich, Senior Counsel INTRODUCTION The Veteran served on active duty from June 1971 to February 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which granted service connection for PTSD and awarded TDIU, and which assigned an effective date of June 3, 2003 for both. The Veteran disagreed with the effective date assigned the award of service connection for PTSD and award of a TDIU and perfected an appeal to the Board of Veterans' Appeals. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. In August 1991, VA received the Veteran's original claim of entitlement to service connection for PTSD; the claim was denied in an unappealed March 1992 rating decision and in unappealed rating decisions of August 1992 and March 1997. 2. The Veteran submitted a reopened claim for PTSD in June 2003. 3. Service connection for PTSD was granted in a January 2010 rating decision, with an assigned rating of 70 percent effective June 3, 2003; the effective date was assigned based on relevant official service department records that existed at the time of the prior denials, but which had not been associated with the claims file when VA first decided the claim. 4. VA had sufficient information at the time of the March 6, 1992 rating decision to obtain the dispositive service records from the appropriate service department. 5. PTSD is the Veteran's only service-connected disability. 6. The Veteran has been unable to obtain or maintain substantially gainful employment since at least August 8, 1991. CONCLUSIONS OF LAW 1. The criteria for an effective date of August 8, 1991 for the grant of service connection for PTSD have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156(c), 3.400 (2012). 2. The criteria for an effective date of August 8, 1991 for the grant of a TDIU have been met. 38 U.S.C.A. §§ 5103, 5103A, 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.340, 3.400, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 and 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) describe VA's duties to notify and assist claimants in substantiating a claim for VA benefits. Upon receipt of a complete or substantially complete application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and notify the claimant and his or her representative, if any, of what information and evidence not already provided, if any, is necessary to substantiate, or will assist in substantiating, each of the five elements of the claim including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present case, the Veteran's claim arises from his disagreement with the assignment of the effective date following the grant of service connection for PTSD and a TDIU. Courts have held that, once the benefit sought is granted, the claim is substantiated, and additional notice is not required. Thus, any defect in the notice provided generally is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). Relevant post-service treatment records identified by the Veteran have been obtained. This includes VA treatment records and examination reports. He has not identified any additional evidence not already obtained. Thus, the Board finds that all efforts have been made to obtain relevant, identified, and available evidence. VA has satisfied its duties to inform and assist the Veteran. Additional efforts to assist or notify him would serve no useful purpose. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claims. Earlier Effective Date Statutes and Regulations The effective date for the grant of service connection for disability compensation is the "day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later." 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation, dependency and indemnity compensation or pension, 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); 38 C.F.R. § 3.400(q)(1)(ii)(r). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, 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 execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. Medical records cannot constitute an initial claim for service connection; rather there must be some intent by the claimant to apply for the benefit. Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). Pursuant to § 3.156(c), a final decision will be reconsidered when new and material evidence, in the form of service records, results in the reopening of a claim and a retroactive evaluation may be assigned. During the pendency of this appeal, the provisions of 38 C.F.R. § 3.156(c) were amended, effective October 6, 2006. See 71 Fed. Reg. 52,455 -52,457 (Sept. 6, 2006) (now codified at 38 C.F.R. § 3.156(c) (2012)). Under the prior regulation, where the new and material evidence consisted of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction (AOJ). This included official service department records which presumably had been misplaced and now been located and forwarded to VA. See 38 C.F.R. § 3.156(c) (2006). The preamble in the proposed regulation contained a full explanation of the bases for the change in regulation. See 70 Fed. Reg. 35,388 -35,390 (June 20, 2005). The preamble noted that the use of the words "new and material evidence" was confusing as it inferred that VA may reopen a claim when service department records were received that were not available before. The effective date of such a claim would be the date of the reopened claim. It was noted that, in practice, when VA received service department records that were previously unavailable at the time of the prior decision, VA may reconsider the prior decision. The effective date assigned would relate back to the date of the original claim, or date entitlement arose, whichever is later. The effective date would not be limited to the date of the claim to reopen. The change was intended to broaden the description of service department records to include unit records, such as those received from the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly U.S. Armed Services Center for Research of Unit Records (USASCRUR)) that pertain to military experiences claimed by a Veteran. It was noted that such evidence may be particularly valuable in connection to claims for benefits for PTSD. Id. at 35,388; see also Vigil v. Peake, 22 Vet. App. 63 (2008). The revised regulation provides: (c) Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. (2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. (3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. (4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. See 38 C.F.R. § 3.156(c) (2012). Earlier Effective Date Claims PTSD The Veteran, through his representative contends that the appropriate effective date for the grant of service connection for PTSD is August 8, 1991, the date of his original claim. He also contends that the provisions of 38 C.F.R. § 3.156(c) allow for the assignment of this earlier date. The Veteran first filed a formal claim for service connection for PTSD on August 8, 1991. In letters to the Veteran dated October 2 and 9, 1991, VA asked him to complete and return medical release forms in favor of any treating doctors and/or hospitals. He was also asked to provide a statement of "stressors" the stressful events that he claimed as a basis for having PTSD. Records on file show the Veteran was admitted to West Haven VA Medical Center hospital on August 2, 1991 for PTSD and substance abuse, with secondary diagnosis of "rule out" antipersonality disorder and discharged on August 15, 1991. The RO received an October 1991 VA treatment report showing that the Veteran had been seen for drug dependence. The RO also received Navy records showing the Veteran's assignment to the USS Charles Berry, DE 1035, and subsequently, his transfer to the Navy Station in Long Beach for separation from active duty as well as information that the Veteran participated in numerous campaigns and counteroffensives in Vietnam. The RO scheduled the Veteran for a formal compensation examination, in order to further consider his claim. The VA Medical Center indicated that the Veteran failed to report for the examination which was scheduled for March 4, 1992. The Veteran's claim was denied on March 11, 1992 for this reason. The Veteran reported for a formal compensation examination on March 11, 1992. The examiner found that there was insufficient evidence for a diagnosis of PTSD. The examination diagnosed polysubstance abuse, which constituted willful misconduct under the law. On March 15, 1992, the Veteran submitted a Statement in Support of Claim in which he described his stressors while in service. Service connection for PTSD was denied in an August 1992 rating decision. A complete review of records from the personnel file, DD214, reported in-service stressors, and VA PTSD examination were considered at that time, but did not show a clear diagnosis of PTSD that could be related to a valid in-service stressor. Service connection for PTSD was also denied in a March 1997 rating decision because the evidence at that time was not considered new and material. On June 3, 2003, the Veteran again filed a claim to reopen his claim for service connection for PTSD. This claim ultimately led to the grant of service connection for PTSD by a rating decision dated in January 2010. The rating action assigned a 70 percent rating, effective June 3, 2003. In August 2009, evidence was received in the form of deck logs from the USS Berry confirming a heavy explosion from the boiler occurred in January 1972. This evidence, coupled with a November 2009 VA examiner linking the Veteran's PTSD to this stressor, led to the January 2010 grant of service connection for PTSD. The RO decision determined that June 3, 2003 was the appropriate effective date as it was the date the Veteran filed his request to reopen his claim for PTSD with the RO. The same decision granted entitlement to TDIU, also effective to June 3, 2003. The RO found that the Veteran had continuously prosecuted his claim since June 3, 2003, but had not continuously prosecuted his claim between receipt of his initial claim in August 1991 and receipt of the June 3, 2003 claim. The RO noted that the Veteran allowed his claim to lapse and become final on more than one occasion. The RO noted the earliest possible effective date for a reopened claim was the date of receipt of the claim. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). The Veteran has argued that new service records were submitted after the issuance of the March 1992 rating decision, warranting the assignment of an effective date commensurate with the date he filed his initial claim for both PTSD and TDIU. As noted above, 38 C.F.R. § 3.156(c) allows for the original claim to be reconsidered if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. Here, there is evidence from the Naval Department, i.e., deck logs that existed at the time the VA first decided the Veteran's claim in March 1992. The Board has considered whether the Veteran failed to provide sufficient information for VA to identify and obtain the records from respective service department, the JSRRC or from any other official source. Under such circumstances, an earlier effective date would not be warranted. The Court recently clarified in Mayhue v. Shinseki, 24 Vet. App. 273, 279-80 (2011) that under 38 C.F.R. § 3.156(c), the fact that a confirmed stressor upon which the grant of PTSD is based had not previously been identified by the Veteran in an earlier claim does not automatically trigger § 3.156(c)(2). Rather, the determinative factor is whether VA had sufficient information to verify a stressor at the time of the original claim, such as through the service personnel records, notwithstanding the fact that the stressor was not one previously identified by the Veteran. Id. In Mayhue, the claimant had not provided any information to enable VA to corroborate his alleged stressors at the time of his original claim. Id. The Court noted that VA ultimately awarded benefits for PTSD based on attacks on the base camp where the claimant's unit was stationed in Vietnam, rather than on any of the claimant's alleged stressors. Id. at 280. However, the information that CURR used to verify the stressor was the unit in which the claimant served and his dates of duty in Vietnam. Id. The Court emphasized that this information had always been a part of the claims file at the time of the original claim. Id. Notwithstanding the fact that the claimant had not cooperated with earlier efforts to verify his alleged stressors by providing more information, and notwithstanding the fact that the stressor verified was not one that had previously been mentioned by the claimant, the Court found that VA's failure to verify the stressor was the result of an administrative error in locating the unit history records. Id. Thus, the Court concluded that the Board erred when it applied § 3.156(c)(2) in finding that the claimant failed to provide sufficient information to obtain the relevant service department records. The facts in this case are analogous to those at issue in Mayhue. The RO ultimately awarded benefits for PTSD because the VA examiner stated that the Veteran's in-service stressors caused his PTSD and because the records showed a boiler explosion while the Veteran was serving on the USS Berry. In Mayhue v. Shinseki, the information that CURR used to verify the stressor was the unit in which the claimant served and his dates of duty in Vietnam. Id. The Court emphasized that this information had always been a part of the claims file at the time of the original claim. Id. On review of the entire record, the Board finds that all service connection criteria for establishing PTSD existed at the time the Veteran's original claim was filed on August 8, 1991. In fact, at the time the Veteran filed his initial claim for service connection for PTSD, he had been admitted to the West Haven VA Medical Center hospital where he received a diagnosis of PTSD. Although the Veteran did not initially submit specific information concerning his claimed stressors until his March 15, 1992 statement, his personnel records showed participation in numerous campaigns and counteroffensives which should have prompted the RO to request further personnel records. As such and in light of Mayhue, the Board finds that an earlier effective date for service connection for PTSD is appropriate effective from date of receipt of the original claim, August 8, 1991, because the information utilized to verify the Veteran's stressors was of record at the time of the original denial of service connection. The appeal, therefore, is granted. The Board also finds that there is no basis for the assignment of an effective date earlier than August 8, 1991 for the grant of service connection. In this case, the record shows that the original claim for service connection for PTSD was the Veteran's claim received by the RO on August 8, 1991, more than one year after his separation from service in February 1974. Moreover, the claims file does not reflect that any communication filed prior to that date could be construed as a formal or informal claim for this specific benefit. As such, an earlier effective date of August 8, 1991, but no earlier, for the grant of service connection for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. TDIU Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Service connection is in effect only for PTSD. In this case, the Veteran meets the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for award of a schedular TDIU, as service connection is in effect for PTSD (rated as 70 percent disabling); accordingly, there is a single service-connected disability ratable at 60 percent or more. As discussed in the preceding section, the effective date of this 70 percent rating is August 8, 1991. The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009) the Court held that where there is evidence of unemployability at the time a Veteran challenges the initial rating or effective date assigned a service-connected disorder, the determination of whether he or she is entitled to TDIU, including the effective date therefor, is part and parcel of the determination of the initial rating. The facts in Rice are similar to those involved in the Veteran's claim. In both cases, the TDIU claim arose in the context of an appeal concerning the initial disability rating. The Board acknowledges that the Veteran's successful PTSD claim involved an application to reopen a previously denied claim, whereas Rice concerned the award of service connection based on an original claim. Nevertheless, given that the Board here is awarding an earlier effective date for PTSD through the device of 38 CFR 3.156(c), which effectively negates the preclusive effects of the prior rating actions, the Board finds that Rice is applicable to this case. For this reason, the Board finds that the Veteran's August 1991 claim seeking service connection for PTSD also included a claim seeking entitlement to a TDIU. Thus, the date of the TDIU claim is August 8, 1991. The remaining question is when the Veteran's PTSD rendered him unemployable. The central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, supra. The Board also points out that, in adjudicating a claim for VA benefit, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See generally 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). VA Medical Center summaries from 1991 to 2000 show hospital admissions for PTSD, depression, and substance abuse. In a March 1992 VA examination, the Veteran noted he had been unemployed for three years. A letter from L.H., PhD and M.C., OTRL from the VA Connecticut Healthcare System notes that Dr. L.H. had known the Veteran since the early 1980s and in their opinion suffered from severe and persistent PTSD related to his military experience in Vietnam and that the gravity of his social and industrial impairment was of long extent. The likelihood of improvement in either sphere either through psychopharmacology or other treatment, including vocational rehabilitation was bleak. A May 2005 note from the Veteran's treating psychiatrist, D.V., at the VA Medical Center in New Haven indicated that she did not consider the Veteran capable of any sustained or competitive employment out in the world; and that he would likely be a danger to himself or others if placed in any employment situation. VA Medical Center Mental Health records dating from November 2005 show treatment for numerous medical issues and consistently show psychiatric visits with diagnoses of history of PTSD with history of intravenous drug use and alcohol abuse; with the most recent showing the Veteran clean and sober for more than years. Records obtained from the Social Security Administration (SSA) consist of VA Medical Center Mental Health records showing diagnoses of PTSD, polysubstance abuse, cocaine abuse, and alcohol dependence. Based on these records and its adjudicative examinations and procedures, the SSA determined that the Veteran had been disabled since May 1990 due to PTSD and substance addiction disorder. A finding that TDIU is warranted must be based on the individual veteran's situation. Here, the competent medical evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected PTSD. The Veteran's PTSD is rated as 70 percent disabling, which is indicative of significant impairment. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The critical issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In this case, the evidence reflects that the Veteran's PTSD presents significant obstacles with respect to the Veteran's employability, essentially rendering him unemployable as defined for VA purposes, and that it has done so since at least August 1991. On that basis, the Board finds that August 8, 1991, the date on which the Veteran's initial claim for service connection for PTSD was received with a rating of 70 percent, is also the date entitlement to TDIU arose. Because there is no legal basis on which to grant an effective date prior to August 8, 1991 for TDIU, given the effective date assigned the PTSD, the preponderance of the evidence is against granting TDIU prior to that date. Thus, an effective date of August 8, 1991, is granted. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Subject to the provisions governing the award of monetary benefits, entitlement to an effective date of August 8, 1991, for the award of service connection for PTSD is granted. Subject to the provisions governing the award of monetary benefits, entitlement to an effective date of August 8, 1991, for the award of TDIU is granted. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs