Citation Nr: 1320894 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 09-30 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an effective date earlier than February 5, 1997, for the grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a disability rating in excess of 50 percent for the service-connected PTSD. 3. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for chloracne. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to August 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2009 and June 2011 rating decisions issued by the Department of Veterans Affairs (VA) Hartford Regional Office (RO) in Newington, Connecticut. In November 2009, the Veteran testified before a Decision Review Officer (DRO). A transcript of the hearing is associated with the claims file. In March 2013, the Veteran testified before a Veterans Law Judge (VLJ) during a videoconference hearing. A transcript of the hearing has been associated with the claims file. During the pendency of the appeal, a May 2010 DRO decision increased the Veteran's disability evaluation for his PTSD to 50 percent disabling, effective October 22, 2008. Applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). During the course of the increased rating appeal for PTSD the Veteran has submitted evidence of unemployability due to his service-connected disabilities. See the Board hearing transcript, p. 3. It follows that a request for a TDIU was reasonably raised. See 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part and parcel of a claim for an initial or increased rating for a disability). See also Mayhue v. Shinseki, 24 Vet. App. 273, 280-282 (2011); Norris v. West, 12 Vet. App. 413, 421 (1999); Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001). Therefore, the issue of entitlement to a TDIU has been added to the present appeal. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to a disability rating in excess of 50 percent for the service-connected PTSD and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In March 2013, prior to the promulgation of a decision on the issue as to whether new and material evidence has been received to reopen the claim of entitlement to service connection for chloracne, the Veteran withdrew his appeal at the hearing. 2. In January 2003, the RO granted service connection for posttraumatic stress disorder (PTSD) and assigned an effective date of February 5, 1997. 3. The Veteran submitted a notice of disagreement (NOD) in July 2003, expressing dissatisfaction with the currently assigned disability evaluation for his service-connected PTSD. 4. A statement of the case (SOC) and DRO decision were both issued in March 2004, increasing the disability evaluation to 30 percent disabling, but keeping the effective date as February 5, 1997. 5. The Veteran expressed his satisfaction with the appeal and withdrew the appeal in May 2004. As the Veteran did not appeal the January 2003 decision, the effective date became final. 6. In June 2010, the RO received the Veteran's claim for an earlier effective date for the grant of service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's appealed claim on the issue as to whether new and material evidence has been received to reopen the claim of entitlement to service connection for chloracne, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. The effective date of February 5, 1997, for the grant of service connection for PTSD is final, and the claim must be dismissed as a matter of law. 38 U.S.C.A. §§ 5110, 7105 (West 2002); 38 C.F.R. §§ 3.400, 20.302 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Withdrawal of Issue on Appeal 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). A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204. Withdrawal may be made by the Veteran or by her authorized representative. 38 C.F.R. § 20.204. At the March 2013 hearing before the Board, the Veteran withdrew his appeal as to the issue of whether new and material evidence has been received to reopen the claim of entitlement to service connection for chloracne. See the March 2013 Board hearing transcript, p. 2. The Veteran's statement indicating his intention to withdraw the appeal as to this issue, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal. See Tomlin v. Brown, 5 Vet. App. 355 (1993). Due to the withdrawal of this issue, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2012), amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim, as well as what parts of that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). The VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). As the earlier effective date claim cannot be substantiated as a matter of law, the VCAA notice is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Pratt v. Nicholson, 20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). Earlier Effective Date for the Grant of Service Connection for PTSD The Veteran contends that he is entitled to an effective date earlier than February 5, 1997, for the grant of service connection for PTSD. At the March 2013 Board hearing, the Veteran testified that he received psychiatric treatment in February 1982 at the West Haven VA psychiatry outpatient department, and these records should be considered as an informal claim for service connection for PTSD. See the Board hearing transcript. Review of the claims file reveals that the Veteran originally filed a claim for service connection for a psychiatric disorder in March 1982. In an August 1982 rating decision, the RO denied service connection for PTSD. The Veteran submitted a NOD and a SOC was issued in October 1982. The RO received his substantive appeal in October 1982. In a January 1984 decision, the Board denied service connection for PTSD. The Board reconsidered its decision in February 1985, and continued its denial of service connection for PTSD. In February 1997, the Veteran filed an informal claim to reopen his service connection claim for PTSD. In a September 1997 rating decision, the RO determined that new and material evidence had not been submitted to reopen the claim for service connection for PTSD. Again, the Veteran submitted a timely NOD in September 1998 and a SOC was issued in November 1998. A substantive appeal was received by the RO in December 1998. After receipt of additional evidence, the RO reopened the claim, as reflected in a March 1999 supplemental statement of the case (SSOC), but denied the claim on its merits. The RO continued to deny the claim, as noted in the April 1999 SSOC, the April 2001 DRO decision, and the April 2001 SSOC. After successfully verifying the Veteran's reported stressors, the RO granted service connection for PTSD in a January 2003 rating decision and assigned a 10 percent disability evaluation, effective February 5, 1997. A noncompensable evaluation was assigned effective June 27, 2000. In July 2003, the Veteran submitted a NOD seeking an increased rating for his service-connected PTSD, and in a March 2004 DRO decision, the RO increased the service-connected PTSD disability evaluation to 30 percent disabling, effective February 5, 1997. In May 2004, the Veteran indicated that this action satisfied his appeal and as such, withdrew his entire appeal. As the Veteran did not timely appeal the January 2003 rating decision that granted service connection for PTSD, the decision became final as to the effective date for the award of service connection for PTSD. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302. In June 2010, the Veteran submitted an informal claim for an earlier effective date for the grant of service connection for PTSD. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Under the applicable criteria, the effective date of an award of disability compensation based on an original claim for direct service connection or a claim reopened after final disallowance shall be the date following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. Id. The effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The initial point of inquiry as to the effective date warranted for the grant of service connection for PTSD must begin with whether there is a valid basis in the first instance to bring such a claim. This requires that the claimant have appealed from either the effective date assigned pursuant to an initial grant of service connection, or a non-final adjudication of an increased rating claim. Specifically, the Court in its decision in Rudd v. Nicholson, 20 Vet. App. 296 (2006) addressed the matter of the adjudication of claims for an earlier effective date for a VA benefit already granted, where there is of record a prior final RO or Board decision which considered and denied a claim for that identical benefit. In Rudd, the Court held that where a claim for an earlier effective date represents disagreement with an effective date assigned pursuant to a final RO rating decision (and by implication a final decision of the Board as well), absent an attempt to vitiate the finality of that decision through an allegation of Clear and Unmistakable Error (CUE) in the decision, the claimant has merely raised a "freestanding" claim that cannot remove the finality of the decision which assigned the previous effective date. The holding in Rudd precludes adjudication on the merits of the Veteran's claim for an earlier effective date based upon review of the medical evidence on file, given that the January 2003 rating decision, which granted service connection for PTSD, assigned a 10 percent disabling evaluation, effective February 5, 1997 and became final within one-year from the January 27, 2003, decisional notification to the Veteran. See 38 U.S.C.A. § 7105. He did not file an appeal to the Board of the January 2003 rating decision, and in fact, as previously stated indicated in May 2004 that he was satisfied with his appeal and withdrew the claim. The Veteran did not raise the issue of an earlier effective date for the grant of service connection until provided with an increased disability rating for the service-connected PTSD in a May 2010 DRO decision. The Veteran also has not set forth any allegation of CUE in the January 2003 rating decision to warrant review of that decision on the grounds of a particular clear or manifest error. Thus, a theory of CUE has not been stated as the only remaining basis to attack the validity of the now final January 2003 rating decision. Thus, in the absence of a properly filed CUE claim, no valid claim for an earlier effective date has been raised. Accordingly, the Board must, under Rudd, dismiss the matter due to the lack of a proper claim. ORDER The claim for an effective date earlier than February 5, 1997, for the grant of service connection for posttraumatic stress disorder (PTSD) is dismissed. REMAND With regards to the service-connected PTSD, the Veteran testified at the March 2013 Board hearing that he has been receiving bimonthly treatment at his local VA Medical Center. See the Board hearing transcript, p. 9. VA outpatient treatment records as of April 2010 have been obtained and associated with the claims file; however, there is no indication that the RO attempted to obtain any updated VA treatment records. Where VA has constructive and actual knowledge of the availability of pertinent records in the possession of the VA, an attempt to obtain them must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). With respect to the issue of entitlement to a TDIU, the Court has held that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to a TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As previously stated, the Veteran asserts that he has been unemployed due to his service-connected PTSD. See the Board hearing transcript, p. 3. Moreover, the Veteran does not currently meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). Accordingly, in light of the Court's decision in Rice, the Board directs the RO to proceed with the appropriate development of this issue. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all outstanding records of treatment from the VA Connecticut Healthcare System in West Haven, Connecticut. All records/responses received should be associated with the claims file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. 2. Send the Veteran additional VCAA notice as to the issue of entitlement to a TDIU. All notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2012); 38 C.F.R. §§ 3.102, 3.159 (2012), must be fully met. 3. Arrange for a physician or specialist qualified in the assessment of occupational capability to review the claims folder and provide an opinion as to whether the Veteran is unemployable as a result of service-connected disorders. The claims file must be made available and the opinion should reflect that such review has been accomplished. The examiner is asked to provide an opinion as to whether the Veteran's SERVICE-CONNECTED DISABILITIES IN THE AGGREGATE, (i.e., PTSD; diabetes mellitus, type II; and hemorrhoids) render him UNABLE TO SECURE OR FOLLOW A SUBSTANTIALLY GAINFUL OCCUPATION DUE TO THE COMBINED EFFECTS OF ALL OF HIS SERVICE-CONNECTED DISABILITIES, BOTH PHYSICAL AND PSYCHIATRIC, IF ANY. THE EXAMINER MUST CONSIDER THE VETERAN'S EDUCATION, TRAINING, AND OCCUPATIONAL EXPERIENCE IN MAKING THIS DETERMINATION WITHOUT CONSIDERATION OF HIS NONSERVICE-CONNECTED DISORDERS OR AGE. If the examiner is unable to render the requested opinion(s) without resort to speculation, he or she must so state. However, a complete explanation for such a finding must be provided, such as whether there is inadequate factual information, whether the question falls within the limits of current medical knowledge or scientific development, whether the cause of the condition in question is truly unknowable, and/or whether the question is so outside the norm of practice that it is impossible for the examiner to use his or her medical expertise and training to render an opinion. 4. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The RO/AMC must ensure completion of all remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs