Citation Nr: 1330905 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 05-03 513A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an effective date prior to April 30, 2003, for the grant of a schedular 100 percent rating for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date prior to April 30, 2003, for the grant of a total disability rating for compensation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Jeany Mark, Attorney at Law ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1968 to June 1971. This matter was originally before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which granted the Veteran's claim for a schedular 100 percent rating for PTSD, effective December 17, 2003, and which granted his claim for TDIU, effective April 30, 2003. The Veteran appealed for earlier effective dates. (Later in February 2005, the RO assigned a schedular 100 percent rating for PTSD from April 30, 2003, and the Veteran continued his appeal.) In a May 2007 decision, the Board denied a claim for an earlier effective date for the grant of a schedular 100 percent rating for PTSD; the Board also found that the Veteran's appeal for an earlier effective date for the grant of TDIU had "lapsed." The Veteran appealed the denial with respect to the PTSD issue to the United States Court of Appeals for Veterans Claims (Court). In a January 2008 Order, the Court endorsed a Joint Motion for Remand by the parties (Joint Motion I), vacated the Board's decision, and remanded the case to the Board solely on the matter of an earlier effective date for a 100 percent rating for PTSD for action in compliance with Joint Motion I. In a June 2008 decision, the Board again denied the claim for an earlier effective date for a schedular 100 percent rating for PTSD, and also reiterated that the Veteran's earlier effective date appeal as to the TDIU had lapsed. In an August 2009 Order, the Court endorsed a Joint Motion for Partial Remand by the parties (Joint Motion II) and vacated the Board's decision. The Joint Motion II stated that the Veteran was abandoning his appeal for an earlier effective date for a schedular 100 percent rating for PTSD, and was pursuing the matter of an earlier effective date for TDIU. It was further noted that in determining that the appeal for an earlier effective date for TDIU had lapsed, the Board did not provide an adequate statement of reasons and bases (the parties to the Joint Motion II agreed that it appeared the Veteran may have perfected his claim for an earlier effective date for TDIU to the Board). In an April 2010 decision, the Board determined that the Veteran had perfected an appeal to it in a timely manner with respect to the February 2004 rating decision that assigned an effective date of April 30, 2003 for the grant of TDIU. The Board also remanded the issue of an earlier effective date for TDIU. The issue of entitlement to an earlier effective date for the grant of TDIU is being REMANDED to the RO. VA will notify the Veteran if action on his part is required. FINDING OF FACT Prior to the promulgation of a decision in the appeal, the Veteran indicated in an August 2009 Joint Motion for Partial Remand filed with the Court that he was abandoning, in effect withdrawing, his appeal seeking an effective date prior to April 30, 2003, for the grant of a schedular 100 percent rating for PTSD; there is no question of fact or law remaining before the Board in this matter. CONCLUSION OF LAW Regarding the claim for an effective date prior to April 30, 2003, for the grant of a schedular 100 percent rating for PTSD, the criteria for withdrawal of an appeal by the Veteran have been met; the Board has no further jurisdiction in this matter. 38 U.S.C.A. §§ 7104, 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Pursuant to 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 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(b). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). Withdrawal may be made by the Veteran or by his authorized representative. 38 U.S.C.A. § 7105(b)(2); 38 C.F.R. § 20.204(a). In this case, as noted in the introduction, the Court twice endorsed Joint Motions for Remand between the parties (the Veteran and the VA Secretary), and vacated the Board's decisions in May 2007 and June 2008, which denied the Veteran's claim for an effective date prior to April 30, 2003, for the grant of a schedular 100 percent rating for PTSD. However, in the August 2009 Joint Motion for Partial Remand filed with the Court, prior to the promulgation of a decision in the appeal, the Veteran also indicated that he was abandoning his appeal seeking an effective date prior to April 30, 2003, for the grant of a schedular 100 percent rating for PTSD. Thereafter, the case was returned to the Board, which proceeded to address issues related to an earlier effective date for TDIU; the issue of an earlier effective date for a schedular 100 percent rating for PTSD was overlooked and is now addressed. In abandoning his appeal seeking an earlier effective date for the schedular 100 percent rating for PTSD in August 2009, the Veteran has in effect withdrawn the appeal. Hence, there is no allegation of error or fact or law for appellate consideration on this claim. Accordingly, the Board does not have jurisdiction to consider an appeal in this matter, and the appeal as to the claim must be dismissed. ORDER The appeal seeking an effective date prior to April 30, 2003, for the grant of a schedular 100 percent rating for PTSD, is dismissed. REMAND In April 2010, the Board remanded the issue of an earlier effective date for TDIU, in part so that the RO could readjudicate the Veteran's earlier effective date claim with consideration of whether correspondence from the Veteran dated April 28, 1992 constituted an informal claim for TDIU. In the statement dated in April 1992, the Veteran had asserted that he was unable to hold a job due to service-connected PTSD. (Notably, in 1992, service connection for PTSD was not established; it was not until a December 2002 rating decision that the RO granted service connection for PTSD, effective in January 1991.) The RO determined, in a February 2012 supplemental statement of the case, that the Veteran's statement dated in April 1992 and received at the RO on May 5, 1992, constituted a claim for TDIU. The RO then proceeded to confirm the date of April 30, 2003 as the effective date for TDIU, finding that it was the earliest date of evidence in the record that established his PTSD alone had caused him to be unable to obtain and/or retain substantially gainful employment. The RO explained that medical records dated from 1991 to 2003 reflected diagnoses of schizophrenia, persecutory paranoid disorder, and delusional disorder, and did not show until 2003 that PTSD symptomatology caused him to be unable to work in any environment. The Board observes that the RO did not mention or evidently consider in any way a Los Angeles district court-ordered psychiatric evaluation report dated in January 1995, which the Veteran's representative submitted in January 2010. The Board remanded the case to the RO in April 2010, in part so that the RO could review this evidence (initial RO consideration of the evidence was not waived by the Veteran). In that report, Dr. Carlin not only opined that the Veteran had moderately severe PTSD, but that she had come to question other diagnoses that had been given to the Veteran such as schizophreniform or schizoid personality disorder. In her brief conclusions, she only referred to the Veteran's PTSD. The Veteran claims that the grant of TDIU should be retroactive to 1991. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for increase 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); see 38 C.F.R. 3.400. An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year prior to the date of claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1) and (2). Also pertinent to the Veteran's claim are the provisions specifying when TDIU may be warranted. TDIU 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran's service-connected disabilities consist of the following: PTSD, rated 50 percent from January 10, 1991 and 100 percent from April 30, 2003; scar of the middle left finger, rated 0 percent from January 1991; and scar of the right shoulder, rated 0 percent from December 1991. As is noted in the Introduction above, in August 2009 the Veteran abandoned his appeal for an earlier effective date for the grant of a 100 percent schedular rating for PTSD. Thus, from January 1991 to April 30, 2003, his combined rating is 50 percent, which does not meet the threshold minimum schedular percentage standards for a total disability rating for compensation based on individual unemployability under 38 C.F.R. § 4.16(a). Where, as here, the schedular percentage requirements for TDIU have not been met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The evidence in the file shows that the Veteran has been unemployed since about February 1991. In 1992, he was awarded disability benefits from the Social Security Administration, and his primary diagnosis was paranoid schizophrenia. The decision was based on psychiatric consultation reports from Dr. Amanat, who diagnosed the Veteran with PTSD and paranoid personality in June 1992 and with chronic delusional disorder in October 1992 (he said he knew the Veteran much better by then). Dr. Amanat later revised his assessment, stating in a February 1994 memorandum in strong support of the Veteran's claim for service connection for PTSD that the diagnosis was a combination of PTSD and schizophreniform illness. Various VA examination reports dated in April 1991, October 1992, November 1992, and January 1993, as well as outpatient notes at that time, reflect various psychiatric diagnoses for the Veteran to include PTSD, paranoid personality disorder, and probable schizophrenia (paranoid type). VA outpatient notes in 1997 indicate a diagnosis of schizophrenia, and a VA examination report in June 1998 reflects diagnoses of delusional disorder and paranoid/schizotypo personality disorder. Subsequent VA outpatient records show a diagnosis of personality disorder. However, in May 2001, a VA note shows a diagnosis of personality disorder and symptoms of PTSD by his treating psychologist, who then began to diagnose the Veteran with both personality disorder and PTSD beginning in October 2001. A VA examination report in July 2002 indicates a diagnosis of personality disorder. The most recently submitted evidence of a psychiatric examination report dated in January 1995 clearly diagnoses the Veteran with PTSD at that time, questioning the schizophreniform and schizoid personality disorder diagnoses. Beginning with a statement received in May 1992, the Veteran contends that his service-connected PTSD has kept him from gainful employment. He has not been gainfully employed since at least 1991. Service connection for PTSD was established effective in January 1991, and it has been evaluated as 50 percent disabling from January 1991 to April 30, 2003. Medical records show various psychiatric diagnoses including PTSD going back to 1991. Given the foregoing circumstances, and acknowledging there is some conflict in the medical record as to whether the Veteran's inability to secure and follow a substantially gainful occupation is solely by reason of service-connected disability, the RO should refer the case for consideration of TDIU on an extraschedular basis Accordingly, the case is REMANDED for the following action: The RO should refer the claim for a TDIU rating prior to April 30, 2003 (to include all evidence received since the statement of the case, e.g., Dr. Carlin's psychiatric evaluation report dated in January 1995 and received in January 2010) for consideration of an extraschedular total rating based on individual unemployability pursuant to 38 C.F.R. § 4.16(b). If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case, afford the Veteran and his attorney opportunity to respond, and then return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs