Citation Nr: 1321605 Decision Date: 07/05/13 Archive Date: 07/12/13 DOCKET NO. 00-02 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to March 3, 2003. 2. Entitlement to an initial, staged rating in excess of 50 percent for PTSD from March 3, 2003 through August 3, 2011. 3. Entitlement to an initial, staged rating in excess of 70 percent for PTSD from August 4, 2011. 4. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to August 4, 2011. REPRESENTATION Veteran represented by: Polly Murphy, Attorney WITNESSES AT HEARINGS ON APPEAL The Veteran and his brother-in-law ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from December 1978 to April 1979 and from December 1990 to July 1991. He served in the Southwest Asia Theater from December 25, 1990 to June 22, 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal of an October 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Because of the extensive procedural history of the Veteran's claims, the Board concludes that a brief recitation of pertinent facts would be helpful in setting forth the issues currently before the Board. In an October 1998 statement, the Veteran's private attorney asserted that the Veteran experienced psychiatric symptomatology attributable to PTSD and adjustment disorder with depressed mood. The RO accepted the October 1998 statement as claims to establish service connection for these acquired psychiatric disorders, and these claims were adjudicated separately and denied by the RO in a March 1999 rating decision. The Veteran subsequently expressed disagreement with that determination and perfected an appeal to the Board with respect to both issues, among others. In December 1999, the Veteran filed a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Individual Unemployability), claiming that he had to stop working due to "chest pains and mental health." The RO accepted this submission as a claim for TDIU. In an April 2001 decision, the Board merged the Veteran's claims to establish service connection for PTSD and adjustment disorder with depressed mood, recharacterized the issue as "entitlement to service connection for an acquired psychiatric disorder, to include PTSD," and granted the claim. By the October 2001 rating decision on appeal, the RO denied the Veteran's TDIU claim and implemented the Board's allowance of service connection for PTSD; a 30 percent evaluation was assigned, effective from July 6, 1999. In June 2002, the Veteran's private attorney expressed disagreement with these determinations, among others, and the present appeal ensued concerning the Veteran's claims for TDIU and an initial increased evaluation for service-connected PTSD. Concerning the Veteran's claim for an increased initial evaluation, the United States Court of Appeals for Veterans Claims (Court) has indicated that a distinction must be made between a Veteran's dissatisfaction with an initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later filed claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Inasmuch as the question currently before the Board was placed in appellate status by a notice of disagreement expressing dissatisfaction with an original rating assignment, the Board has characterized the rating issue on appeal as a claim for higher initial evaluation of an original award. Analysis of this issue therefore requires consideration of the rating to be assigned effective from the date of award of service connection for the claim. In a November 2002 rating decision, the RO partially granted the Veteran's claim for an effective date earlier than July 6, 1999, for the grant of service connection for PTSD; the 30 percent initial evaluation was assigned effective from October 13, 1998. The Veteran's private attorney expressed disagreement with this determination and subsequently perfected an appeal to the Board with regard to this issue. In October 2005, the Veteran testified at a personal hearing before an undersigned Veterans Law Judge (VLJ) at the RO. A transcript of the October 2005 hearing is associated with the claims file. In January 2007, the Board denied the Veteran's claim for an effective date earlier than October 13, 1998, for the grant of service connection for PTSD, and remanded the Veteran's claims for TDIU and an increased initial evaluation for service-connected PTSD, among others, for additional procedural and evidentiary development. After the Board's January 2007 remand directives were substantially completed, the Veteran's claims continued to be denied by the RO in a September 2007 Supplemental Statement of the Case (SSOC), and were returned to the Board. In January 2008, the Veteran testified at a videoconference hearing before another undersigned VLJ. A transcript of the January 2008 hearing is associated with the claims file. In an August 2008 three-member panel decision, 38 U.S.C.A. § 7102 (West 2002); 38 C.F.R. § 20.707 (2012), the Board, in relevant part, denied an initial rating in excess of 30 percent for PTSD prior to March 3, 2003; granted an initial 50 percent rating, but no more, for PTSD from March 3, 2003; and remanded the TDIU claim. In effect, the Veteran's claim for an increased initial evaluation for service-connected PTSD was been bifurcated, reflecting the "staged" ratings created by this award. Fenderson v. West, 12 Vet. App. 119 (1999). This increase (30 to 50 percent, effective from March 3, 2003) was implemented by the RO in an October 2008 rating decision. The Veteran appealed to the Court the portion of the Board's August 2008 decision which denied entitlement to an initial evaluation for PTSD in excess of 30 percent prior to March 3, 2003, and entitlement to an initial, staged evaluation in excess of 50 percent for PTSD from March 3, 2003. In October 2009, the Court, consistent with the terms of the parties Joint Motion for Partial Remand (Joint Motion), vacated those portions of the Board's August 2008 decision that denied entitlement to an initial evaluation for PTSD in excess of 30 percent prior to March 3, 2003, and entitlement to an initial, staged evaluation in excess of 50 percent from March 3, 2003, and these issues were remanded to the Board for readjudication. In March 2010, the RO continued to deny the Veteran's TDIU claim. In May 2010, the Veteran's attorney filed a motion for another hearing before the Board in light of the amount of time that had lapsed since the prior Board hearings. In a November 2010 decision, the Board denied the motion for a new hearing as well as the issue of entitlement to an initial rating in excess of 30 percent for PTSD prior to March 3, 2003. The issues of entitlement to an initial rating in excess of 50 percent for PTSD from March 3, 2003 and entitlement to TDIU were remanded for further evidentiary development. While completing the Board's November 2010 remand directives, by an October 2011 Decision Review Officer (DRO) decision, the RO granted a 70 percent initial rating for PTSD, effective August 4, 2011 and granted TDIU, effective from August 4, 2011. The RO's partial allowance of the Veteran's PTSD claim created further "staged" ratings. Fenderson, supra. As this increase does not represent a full grant of the benefits sought, the Veteran's appeal is not abrogated and the matter remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2011, the Veteran's attorney filed a motion for another Board hearing at the local RO. In February 2012, the Veteran's private attorney expressed disagreement with the effective date assigned for the award of TDIU. In March 2012, the Board remanded the bifurcated issues of entitlement to an initial rating in excess of 50 percent for PTSD from March 3, 2003 through August 3, 2011, and an initial rating in excess of 70 percent for PTSD from August 4, 2011, so that the Veteran may be provided an opportunity to testify before all Board members who will ultimately decide the appeal as per the Court's holding in Arneson v. Shinseki, 24 Vet. App. 379 (2011). Further, the claim for entitlement to TDIU prior to August 4, 2011, was remanded for issuance of a Statement of the Case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), with further instruction that the claim was not to be returned to the Board unless a timely substantive appeal was submitted. Subsequent to the March 2012 Board remand, the Veteran's private attorney appealed the portion of the Board's November 2010 decision which denied the Veteran's claim for of entitlement to an initial rating in excess of 30 percent for PTSD prior to March 3, 2003, to the Court. In a June 2012 SOC, the RO continued to deny the Veteran's claim for entitlement to TDIU prior to August 4, 2011. Subsequently, the Veteran's private attorney submitted a timely substantive appeal with respect to this issue, and the Board notes that the July 2012 substantive appeal includes the Veteran's request to present oral testimony in support of this claim at a hearing before a VLJ. A July 2012 letter from the RO reflects that the Veteran was scheduled for a hearing before a VLJ to be conducted at the RO on August 14, 2012. It is unclear whether this hearing was scheduled in connection with the Veteran's newly-perfected appeal for an effective date earlier than August 4, 2011, for the grant of TDIU, or in connection with the Board's March 2012 remand instructions in accordance with Arneson, involving the Veteran's claims for an increased initial evaluation for PTSD and TDIU, which had been previously addressed at the October 2005 and January 2008 hearings. However, in August 2012, the Veteran's private attorney submitted a motion to stay the August 2012 hearing because the Veteran's appeal to the Court concerning Board's November 2010 decision remained pending. Later that month, the Board member assigned to the August 2012 hearing granted the motion to stay the August 2012 hearing. Later in August 2012, in a single-judge Memorandum Decision, the Court vacated the portion of the Board's November 2010 decision which denied entitlement to an initial rating in excess of 30 percent for PTSD prior to March 3, 2003, and specifically noted that, as per the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the matter of entitlement to TDIU prior to March 3, 2003, must be addressed by the Board on remand, to include consideration of whether referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating under 38 C.F.R. § 4.16(b) is appropriate. The Veteran's claims have been returned to the Board. Initial note As noted in the Introduction, the Veteran's TDIU claim was granted by the RO in the October 2011 DRO decision, and an effective date of August 4, 2011, was assigned. In the March 2012 remand, the Board noted that, because the Veteran's private attorney expressed disagreement with the effective date assigned for this award, the issue of entitlement to TDIU prior to August 4, 2011, remained in appellate status for the limited purpose of providing the Veteran with a SOC pursuant to Manlincon. However, as noted by the Court in the August 2012 Memorandum Decision, since the current claim for an increased initial evaluation for PTSD stems from the Veteran's disagreement with the RO's assignment of an initial evaluation in implementing the Board's award of service connection, the Court's holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), is applicable. In Rice, the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran is applicable to the Veteran's claim, and, when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In light of above, the Board concludes that a Rice-type TDIU claim is properly before the Board. This distinction is critical and advantageous to the Veteran because the beginning date of the rating period for consideration of the Rice-type TDIU claim is October 13, 1998, the same as that for the initial rating for consideration in this appeal, rather than December 1999, the date of receipt of the formal TDIU application. 38 C.F.R. § 3.400(o)(1), (2) (2012). As such, the Veteran's TDIU claim has been styled on the title page as entitlement to TDIU prior to August 4, 2011, rather than entitlement to an effective date prior to August 4, 2011, for the award of TDIU. This is so because, since a Rice-type TDIU claim is part and parcel of the claim for an increased initial evaluation, the RO's determination in the October 2011 DRO decision, awarding TDIU, effective from August 4, 2011, was a partial allowance of the benefits sought on appeal, and the portion which was denied remained in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND After a review of the record, the Board concludes that the Veteran's claims must be remanded in order to allow VA to fulfill its duty to assist the Veteran. As noted in the Introduction, the Veteran's claims for entitlement to an initial rating in excess of 50 percent for PTSD from March 3, 2003 through August 3, 2011, and an initial rating in excess of 70 percent for PTSD from August 4, 2011, were remanded so that the Veteran may be afforded a hearing before a third VLJ under the Court's holding in Arneson. Although the bifurcated issue of entitlement to an initial evaluation in excess of 30 percent for PTSD prior to March 3, 2002, was not before the Board at that time, it is noted that, since the hearing is necessary for the Veteran's entire claim for an increased initial evaluation for PTSD as per Arneson, the Veteran is entitled to a hearing with respect to this issue as well. In essence, the private attorney's motion to stay the August 2012 hearing was filed with the intent to allow the Veteran's bifurcated claims for an increased initial evaluation for PTSD to meet under the Board's jurisdiction, as they have at the present, before the hearing was provided. To the extent that the Veteran requested an additional hearing in connection with his claim for entitlement to TDIU prior to August 4, 2011, the Board notes that, because this claim is not a claim for an earlier effective date, but rather, a claim for TDIU prior to August 4, 2011, which is part and parcel of the claim for an increased initial evaluation, he has already presented oral testimony in support of this claim in October 2005 and January 2008. Consequently, the Court's holding in Arneson also applies to the Veteran's claim for TDIU prior to August 4, 2011, and the Veteran's request for a hearing before a third VLJ must be fulfilled. Also, it does not appear that the RO considered whether TDIU was warranted at any time before the Veteran filed his "traditional" TDIU claim in December 1999. As such, the portion of the Veteran's Rice-type TDIU claim which may be granted at any time during the rating period from October 13, 1998 through August 3, 2011 must be adjudicated in the first instance by the RO. Godfrey v. Brown, 7 Vet. App. 398 (1995); Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the Board must remand the Veteran's TDIU claim for adjudication by the RO, in the first instance, as to whether such is warranted at any time during the pendency of the Veteran's appeal for an increased initial evaluation from October 13, 1998. Finally, in February 2003, the Veteran submitted a VA Form 28-1900, Application for Vocational Rehabilitation. It is unclear whether the Veteran participated in Vocational Rehabilitation as a result of this application. Nonetheless, the Board finds that the Veteran's VA Vocational Rehabilitation records, if any, may be useful in adjudicating the Veteran's claim. The Court has held that records generated by VA facilities that may have an impact on the adjudication of a claim, such as Vocational Rehabilitation records, are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). VA has a duty to seek such records, as they may affect all of the Veteran's claims on appeal. 38 C.F.R. § 3.159(c) (2012). Accordingly, the case is REMANDED for the following actions: 1. Contact the appropriate repository and attempt to obtain all VA Vocational Rehabilitation records, if any, for the Veteran, pursuant to his February 2003 claim for Vocational Rehabilitation. Associate all received records, if any, with the claims file. 2. Thereafter, complete any additional evidentiary development deemed necessary to adjudicate the appeal for increased staged initial evaluations for PTSD, to include providing him a VA examination. Thereafter, readjudicate the Veteran's appeal for increased staged initial evaluations for PTSD. IF the Veteran's appeal for increased staged initial evaluations for PTSD is not granted to the fullest extent, the Veteran and his private attorney should be furnished a SSOC and afforded a reasonable period of time within which to respond thereto. 3. Thereafter, complete any additional evidentiary development necessary to adjudicate the claim of entitlement to TDIU at any time during the rating period from October 13, 1998 through August 3, 2011 (prior to August 4, 2011), to include providing him a VA examination and obtaining a retroactive medical evaluation. Chotta v. Peake, 22 Vet. App. 80 (2008). In adjudicating the TDIU claim, if the RO finds that the Veteran is unemployable, but that his combined evaluation does not meet the criteria of 38 C.F.R. § 4.16(a) for any period prior to August 4, 2011, refer the Veteran's TDIU claim to the Under Secretary for Benefits or the Director of Compensation and Pension Services for consideration of assignment of an extraschedular evaluation for that period. 4. If entitlement to a TDIU is not granted for any period from October 13, 1998, and prior to August 4, 2011, the Veteran and his private attorney should be furnished a SSOC and afforded a reasonable period of time within which to respond thereto. 5. Following completion of the above requested actions, if any benefit sought on appeal remains outstanding, Schedule the Veteran for a Travel Board or videoconference hearing, before a Veterans Law Judge, at the RO and provide him the appropriate scheduling notice. If the Veteran fails to appear for such a scheduled hearing, or otherwise indicates he no longer desires such a hearing, this should be documented in the record. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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). _______________________________ ____________________________ K. A. BANFIELD DENNIS F. CHIAPPETTA Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).