Citation Nr: 1322743 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-07 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an effective date for a total evaluation for post-traumatic stress disorder (PTSD) prior to December 7, 2004. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from June 1968 through May 1972. This appeal comes to the Board of Veterans' Appeals (Board) from an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure total review of the evidence. Additionally, the Board notes that additional treatment records from 2009 through 2012 were submitted to the Board which were not previously considered by the agency of original jurisdiction (AOJ), and no waiver was submitted. However, the Board finds these recent treatment records are not relevant to the Veteran's claim for an effective date earlier than December 2004. As such, the Board finds the Veteran is not prejudiced by the AOJ's lack of consideration of the recent VA treatment records. FINDINGS OF FACT 1. In a February 1995 rating decision the Veteran's service connected PTSD rating was continued at 30 percent; the Veteran did not file new evidence or a notice of disagreement within one year. 2. The evidence of record establishes the Veteran suffered total occupational and social impairment no earlier than October 7, 2004. CONCLUSIONS OF LAW 1. The February 1995 rating decision which denied an increased rating is final. 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. The criteria for an effective date of October 7, 2004, but no earlier, for the grant of a total disability rating for PTSD have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking an earlier effective date for the grant of total disability rating for his service connected PTSD. The Veteran argues the total rating should date back to when he first filed his initial claim for service connection for PTSD benefits. The Veteran filed his initial claim seeking service connection for PTSD in September 1991. Service connection was initially denied, and the Veteran perfected an appeal of that denial to the Board, however, before the appeal reached the Board, service connection was granted and a 30 percent rating was assigned in a December 1992 rating decision. The Veteran was informed that this was considered to be a grant of the total benefit sought. The Veteran did not appeal the effective date of the award, or the rating that was assigned, and did not file new evidence or a notice of disagreement within one year. In January 1995 the Veteran underwent a VA psychiatric examination, and following the examination, the RO reviewed his claim, but affirmed and continued the 30 percent rating in a February 1995 rating decision. The Veteran was notified of the decision, but again he did not file new evidence or a notice of disagreement within one year challenging the 30 percent rating. As such, the February 1995 rating decision became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103. In September 2000 the Veteran filed a new claim seeking an increased rating for his service connected PTSD. A January 2002 rating decision increased the Veteran's disability rating to 50 percent for PTSD as of the date of the Veteran's claim. The Veteran appealed, and an April 2005 rating decision increased his rating to 70 percent as of December 7, 2004, the date a VA examination showed that his PTSD had worsened. In an October 2005 decision, the Board concluded that a rating in excess of 70 percent was not warranted. The Veteran appealed the Board decision to the Court of Appeals for Veterans Claims (Court), and the Court vacated the Board's decision and remanded it for compliance with a memorandum decision. In February 2009, the Board concluded that the Veteran met the schedular rating criteria for a 100 percent rating, which was made effective as of December 7, 2004. In June 2009 the Veteran filed a timely notice of disagreement asserting his total disability rating should date back to when he first filed his initial claim for service connection for PTSD in September 1991, arguing that he had been continuously appealing every decision to the Board, which he believed caused his appeal to continue. He timely perfected the appeal of the effective date for the 100 percent rating to the Board. The general rule with regard to an award of increased compensation is that the effective date for such an award will be the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to this rule applies where the evidence demonstrates that a factually ascertainable increase in disability occurred during the one-year period preceding the date of receipt of the claim for increased compensation. Otherwise, the effective date remains the date the claim is received. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating and (2) a review of all the evidence of record to determine when an increase in disability was "factually ascertainable." Hazan v. Gober, 10 Vet. App. 511 (1992). In this case the Veteran filed his current claim in September 2000. As such, the earliest effective date his total disability award could be awarded is September 1999, if it was factually ascertainable that the increase in severity of his PTSD occurred in the year prior to filing his claim. As discussed above, the Veteran is seeking an effective date as early as September 1991. However, Veteran has not alleged clear and unmistakable error (CUE) in the previous final decision so he is precluded by law from an effective date dating back to the initial date of his filing for PTSD. See 38 C.F.R. §§ 3.105(a), 20.1403. While the Veteran asserted in his June 2009 notice of disagreement that he had been appealing the decisions continuously, this is not the case. As discussed above, he did not timely appeal the February 1995 rating decision which continued a 30 percent rating for PTSD and that decision there became final. The Veteran cannot file a new claim seeking an earlier effective date than an award which has already become final, as such would constitute a "freestanding" effective date claim that would undermine the finality of previous decision, and for this reason is not allowed. Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). Therefore, in this case the Veteran is barred from seeking an effective date prior to September 1999, at the earliest. As such, only evidence reflecting the Veteran's PTSD condition between September 1999 and December 2004 will be discussed. The Board has reviewed all of the evidence of record for this time period and determined that, although the Veteran's condition continued to decline throughout the relevant time period, the evidence does not establish he was entitled to a total disability rating until October 2004. Under the VA regulations, a 100 percent rating is assigned when PTSD causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The nomenclature employed in the portion of VA's Rating Schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (also known as "DSM-IV"). 38 C.F.R. § 4.130. DSM-IV contains a Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of an individual. Under DSM-IV, GAF scores ranging between 61 and 70 are assigned when there are 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 when the individual is functioning pretty well and has some meaningful interpersonal relationships. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores ranging between 41 and 50 are assigned when there are 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). The earliest mental health treatment records from the period in question are from May 2000, when the Veteran began treatment with a VA social worker. The Veteran reported problems in his marriage, including his desire to isolate and inability to sit close with his wife. The social worker opined the Veteran was suffering from severe PTSD symptoms and assigned a GAF score of 40, suggesting serious symptoms. In September of 2000 the Veteran returned to the same social worker and reported increased feelings of isolation from others. The social worker noted the Veteran spoke with a flat affect, appeared agitated and unkempt, although he did not appear to have a delusional thought disorder. The social worker again assigned a GAF score of 40 and opined that the Veteran had severe social and industrial impairment, and was unable to work due to his PTSD symptoms. The following month, in October 2000, the Veteran was provided with a VA examination in which he was assessed by a psychiatrist. The Veteran reported his same feeling of isolation, and noted he avoided crowds and hospitals as they triggered his PTSD symptoms. He stated he continued to live with his common law wife and son. The Veteran described trying to do activities with his son, such as going to movies or flea markets, but otherwise he avoided crowds. He stated his wife criticized him for being anti-social. He reported getting angry with his family on occasion when they did not deserve it, but he denied ever getting physical with them. The examiner noted the Veteran appeared neatly dressed and oriented, and suggested that the Veteran perceived his own condition to be worse than it was. The examiner opined the Veteran did not have severe or even moderate PTSD, but instead only had mild occupational impairment and moderate emotional impairment. He asserted that the Veteran could be gainfully employed, and felt that there was no psychological reason he should not be seeking a job. The examiner assigned a GAF score of 60, supporting his conclusion that the Veteran's symptomatology was moderate. As such, two mental health professionals examined the Veteran during a short period of time and reached differing opinions. The Board notes that the May and September opinions were from a social worker, while the October 2000 exam was conducted by a psychiatrist. As the October 2000 examiner was more qualified and had additional education and expertise in the area of mental health, the Board finds his opinion is more persuasive. See Sklar v. Brown, 5 Vet. App. 140, 146 (1993). Therefore, the Board finds the weight of the evidence establishes the Veteran had only moderate symptoms of PTSD in the fall of 2000 and did not have total social or occupational impairment. Moreover, even if the comments of the social worker are accepted as fact, the evidence would still fall short of establishing total occupational and total social impairment. The Veteran did report having problems with his wife, but he was married and he was able to interact with his son. Thus, while his symptomatology was found to be severe, this is not total. The Veteran returned to mental health professionals in July of 2002, and again reported avoiding crowds and a desiring to isolate himself socially. The mental health professional noted the Veteran was fairly groomed, spoke with logical speech, and reported no delusions or suicidal ideation. This professional assigned a GAF score of 50, suggesting serious, but again not total, impairment. In September 2002 the Veteran's psychiatrist conducted a Beck Depression Inventory and the Veteran scored 51, suggesting a severe mood disorder. The psychiatrist also assigned a GAF score of 45 and gave the Veteran a trial of a new medication. When the Veteran returned in October 2002 the psychiatrist noted the Veteran appeared calmer with his adjusted medication, suggesting his condition had improved. Even so, the Veteran reported that he continued to experience nightmares and flashbacks fairly regularly. In December 2002 the Veteran again reported feeling isolative, feelings of anxiety, and a desire to avoid crowds. Overall the Veteran described he was not doing very well. The psychiatrist noted the Veteran appeared tired and spoke with a flat affect. In January 2003 the Veteran was provided with another VA examination. The Veteran again reported he avoided stores and other public activities, but would occasionally take his son to the movies and sometimes sold items at the flea market. The Veteran also reported feeling excessive guilt and feelings of worthlessness. The examiner noted the Veteran appeared to have fair hygiene, spoke with organized thoughts, and was oriented. He scored 27 out of 30 on the mini-mental status exam and the examiner assigned a GAF score of 48. The examiner noted the Veteran did have significant problems in his relationship with his family. However, the examiner opined that the Veteran was not unemployable, and suggested that obtaining gainful employment could help the Veteran's self-esteem and functioning. Based on the foregoing, the Board finds that evidence reflects that the Veteran's condition declined throughout 2002, with increasing symptomatology. However, the Board finds the evidence did not establish that the Veteran had total occupational and social behavior during that time. The Veteran continued to maintain a relationship with his wife and teenaged son, and engaged in occasional social activities. Furthermore, the January 2003 examining physician opined the Veteran did not have total occupational employment. As such, the Board finds the Veteran was not entitled to a total PTSD rating at that time. Treatment records from May 2003 reflect that the Veteran's VA psychiatrist wrote a letter to the VA at his request, opining that he was not employable. While the letter was written by a psychiatrist, the psychiatrist did not provide a any rationale for the psychiatrist's opinion. He merely wrote that in his opinion the Veteran was unemployable, but did not include a rationale for his conclusion. As such, the Board finds this opinion is provided less probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, the letter did not find the Veteran to be totally socially impaired. In a September 2003 treatment record the Veteran's mental professional noted his focus on the idea that his ex-wife cheated on him with a good friend twenty years earlier. The professional tried to point out that the Veteran and his ex-wife were divorced and there was no real evidence for his concern, but the Veteran expressed anger at being "made a fool." The Veteran returned for treatment in November and reported his friend denied the affair when questioned. The Veteran also reported he was doing pretty well on his current medication and found it helped him be calmer and less prone to anger. In October 2004 the Veteran's social worker submitted an additional letter to the VA. The social worker wrote that he began treating the Veteran in May 2000 and since that time has seen his pathology increase. He reported the Veteran continued to become more detached from his family, choosing to isolate himself from them in order to avoid anger flare ups. The Veteran reported he no longer felt close to anyone. He had also become more susceptible to triggers, and experienced more frequent flashbacks, intrusive thoughts, and nightmares. The social worker noted he now experienced daily anxiety triggered by daily activities. The Veteran also had poor concentration, was easily distracted, and forgot where he put things. The social worker opined the Veteran had chronic severe PTSD which rendered him unemployable, and assigned a GAF score of 38. The Board finds this letter is probative evidence that the Veteran's condition had worsened over the course of his treatment with his social worker. Moreover, it is the first instance that the Veteran was shown to have extreme social impairment. This is not to say that the Veteran was not socially impaired earlier, but social impairment is a factor in all the disability levels of PTSD. As such, a 100 percent rating requires total social impairment. In December 2004 the Veteran was provided with an additional VA examination. The examiner reviewed the Veteran's claims file, then personally interviewed and examined the Veteran. The Veteran continued to report nightmares, difficulty sleeping, increased arousal, and flashbacks occasionally triggered by loud noises. The Veteran also described himself as significantly irritable with angry outbursts. He reported he had lost interest in all friends and going places, and isolated himself as much as he could. He also admitted to suicidal thoughts, paranoia, and distrusting his wife. Upon examination the examiner found the Veteran was grossly oriented, made intermittent eye contact, and had no delusional thoughts. However, the Veteran was anxious, irritable, and appeared with poor hygiene. The examiner noted he had some obsessive rituals, including ensuring his house was locked several times before going to bed. Based on the foregoing the examiner opined the Veteran demonstrated deficiencies in most areas including work, family relationships, judgment and mood. He continued the Veteran had difficult adapting to stressful circumstances and had an inability to establish and maintain affective relationships. The examiner assigned a GAF score of 40 and opined the Veteran had serious impairments in his ability to work, relationships with friends and family, and mood. The Board finds this VA examination supports the October 2004 record from the Veteran's social worker that his condition had worsened. Based on the foregoing, the Board finds that the Veteran's condition continued to decline during the period on appeal until late in 2004. The Board notes that even in December of 2004 the Veteran continued to exhibit several symptoms which suggested he was not totally disabled due to PTSD, including remaining oriented and lacking persistent delusions or gross impairment in thought processes. However, while weighing the evidence of record and granting the benefit-of-the-doubt to the Veteran, the Board assigned a 100 percent rating in a February 2009 decision. In an April 2009 rating decision the RO assigned an effective date of December 2004. However, based on review of the evidence the Board finds the Veteran's treatment record from October 2004 reflects a similar condition as the December 2004 examination. That is, the Board finds that the Veteran's condition had already worsened as of October 2004. Both records reflect that the Veteran experienced increased anxiety and an increased desire to isolate himself, including from his wife and son. In reviewing the evidence of record the Board finds the Veteran was experiencing the same increased symptomatology in October 2004 as he was in December 2004. As such, the Veteran's claim of an earlier effective date for a total disability rating for PTSD is granted as of October 7, 2004, the date of the letter from his social worker. In March 2010, the Veteran's representative wrote that the Board should consider the Veteran's lay statements to determine whether an earlier effective date was warranted for the total rating for PTSD. The Board has done so. On this point, the Board notes that as a lay person, the Veteran is considered to be competent to report what comes to him through his senses, and he can thus describe the PTSD symptoms he experiences such as nightmares or flashbacks. See Layno v. Brown, 6 Vet. App. 465 (1994). However, he lacks the medical training and expertise to provide a complex medical opinion as to the severity of his PTSD. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, the Veteran's statements have been reviewed both in his claims and in his discussions with various medical professionals. As such, the Veteran's contentions have been given their full due consideration, and indeed they helped support the assignment of an earlier effective date. The Board has also considered whether referral for consideration of an extraschedular rating would have been warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's PTSD that would render the schedular criteria inadequate. As discussed above, the Board has given consideration to all of the symptoms which both the Veteran and the medical records have attributed to his service connected PTSD in determining whether a 100 percent rating was warranted earlier. As discussed the Board focused above on how the totality of the Veteran's PTSD symptoms impacted his social and occupational functioning. In so doing, the Board has in fact considered the entirety of the Veteran's PTSD related symptomatology within the context of the schedular ratings. Therefore, because the schedular ratings adequately contemplate the Veteran's symptoms, referral for consideration of an extraschedular rating was not warranted during the period on appeal. Based on all of the foregoing any reasonable doubt is resolved in favor of the Veteran, and an earlier effective date for his total disability rating for PTSD is granted as of October 7, 2004, but no earlier. See 38 C.F.R. § 3.102. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the Veteran's claim for an increased rating for PTSD was fully granted and a total disability rating was assigned. He then appealed the downstream issue of the effective date of the rating assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law with regards to that issue. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. The Veteran's social security records were also obtained. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he withdrew his hearing request. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. In May 2008, the Veteran's representative requested an additional 30 days to submit additional evidence. The representative also requested that the Board provide her a copy of the Veteran's claims file. On June 3, 2013, the Board sent the Veteran's claims file, consisting of approximately 500 pages, to the Veteran's representative. The Board then delayed the adjudication of the Veteran's appeal approximately five weeks, following the delivery of the documents to his representative, waiting for any additional evidence or argument to be submitted. However, no additional evidence or argument has been submitted and no additional request for time to be extended was received. As such, the Board believes that it has fully satisfied any duty to assist the Veteran. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER An effective date of October 7, 2004, but no earlier, for the assignment of a total disability rating for PTSD is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ MATTHEW W. BLACKWELDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs