Citation Nr: 1335725	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  10-22 860A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire

THE ISSUES

1. Whether there is new and material evidence to reopen a claim of entitlement to service connection for residuals of an eye injury.

2. Whether there is new and material evidence to reopen a claim of entitlement to service connection for residuals of burn scars.

3. Entitlement to an initial compensable rating for headaches.

4. Entitlement to separate compensable ratings for nervousness, anxiety and claustrophobia, as distinct from symptoms associated with service-connected posttraumatic stress disorder (PTSD).

5. Entitlement to special monthly compensation (SMC) based on the need for regular Aid and Attendance (A&A).

6. Entitlement to an effective date earlier than June 10, 2004, for the award of a 70 percent rating for the PTSD.

7. Entitlement to an effective date earlier than June 10, 2004, for the grant of a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Penelope E. Gronbeck, Esq.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty in the military during World War II, from January 1945 to June 1946.

He appealed to the Board of Veterans' Appeals (Board/BVA) from several rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  More specifically, a March 2009 RO rating decision denied his petitions to reopen his previously denied claims for eye and residual scar disorders.  An April 2010 rating decision granted service connection for headaches, but he appealed the 0 percent (noncompensable) rating initially assigned for this disability.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals the initial rating for a disability, VA must consider the propriety of a "staged" rating based on changes in the degree of severity of the disability since the effective date of service connection).  That decision also denied a separate rating for mental health symptoms apart from those already determined to be associated with or part and parcel of the Veteran's already service-connected and adjudicated PTSD.

This appeal also contests a November 2011 rating decision denying SMC on the basis of purported need for regular A&A.

Moreover, and bearing some explanation, is the procedural history of the claims for earlier effective dates prior to June 10, 2004, for assignment of a 70 percent rating for the PTSD and a TDIU.  The Board has jurisdiction over these additional claims.  The relevant history begins with a January 1999 RO rating decision that awarded service connection for PTSD with a 50 percent rating effective August 17, 1993; the Veteran appealed therefrom as to the assigned initial disability rating.  See again Fenderson, 12 Vet. App. at 125-26.  He also appealed from a November 2000 RO rating decision denying a TDIU.  Thereafter, in a January 2006 rating decision, the RO granted an increased rating for the PTSD to 70 percent, effective from June 10, 2004.  A May 2006 RO rating decision granted a TDIU, likewise effective from June 10, 2004.  There were several follow-up letters from the Veteran, some indicating an intent to withdraw his appeal on all accounts, see 38 C.F.R. § 20.204, whereas others appearing to state a contrary intent.  When the appeal reached the Board, a November 2006 decision was issued dismissing the claim for an increased rating for the PTSD based on voluntary withdrawal of the appeal by the Veteran.  (The Board otherwise found the claim for TDIU fully satisfied by the May 2006 grant of that benefit, effective June 10, 2004.)  Hence, as of that decision, the assigned evaluation for PTSD prior to June 10, 2004, as well as concurrent entitlement to a TDIU before that date, were final and settled issues.  However, this did not end consideration of these issues as the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court/CAVC).

As further pertains to the background history of the earlier effective date claims on appeal, in a June 2008 Joint Motion for Partial Remand, the Veteran's attorney and VA's Office of General Counsel, as the parties to the appeal before the Court, determined initially that the November 2006 Board decision would not be vacated to the extent it had dismissed a claim for an increased rating for the PTSD.  The Joint Motion further indicated, however, that the November 2006 Board decision should have addressed not only whether the Veteran had withdrawn his appeal of a claim for an increased rating, but also the issue of whether he had appealed the effective date of June 10, 2004 for assignment of the 70 percent disability rating for his PTSD and a TDIU.  The Joint Motion identified several of his filings with the RO, particularly letters from May 2006, as potentially constituting a timely Notice of Disagreement (NOD) with the effective date assigned for the 70 percent rating for his PTSD, as well as TDIU.  A remand back to the Board was indicated to determine whether that NOD was properly filed.  The Court approved the Joint Motion pursuant to a June 2006 Order, and the case was remanded back to the Board.  Subsequently, upon receipt of this case and after an initial remand (to afford the Veteran a hearing), a November 2009 Board decision concluded that a timely NOD was indeed filed regarding the earlier effective date claims at issue, and the Board then remanded these claims for issuance of a Statement of the Case (SOC) as the next step in the appellate process.  See Manlincon v. West, 12 Vet. App. 119 (1998).  Once the required SOC was issued in April 2010, the Veteran responded by filing a June 2010 Substantive Appeal to the Board (VA Form 9) - thereby completing the steps necessary to perfect his formal appeal of these claims to the Board.  See 38 C.F.R. § 20.200.

Therefore, following the aforementioned series of events, the earlier effective date claims for a 70 percent rating for PTSD, and for a TDIU are on appeal to the Board.   
The Veteran properly filed a claim for a "downstream" earlier effective date from the RO's award of the compensation benefits at issue.  This is also notwithstanding any argument, i.e., collateral attack, recently made by the Veteran's attorney as to alleged clear and mistakable error (CUE) in the November 2006 Board decision that the Veteran withdrew his appeal of an increased rating for his PTSD.  There is no need to consider this argument in terms of CUE on the merits, inasmuch as that which he is actually seeking, an earlier effective date for the 70 percent rating for his PTSD, and a TDIU, already has been determined to properly be on appeal.

Turning the Board's focus now back to all claims that are presently on appeal, in June 2013 the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board.  This type of hearing is often and more commonly referred to as a "Travel Board" hearing.  A transcript of the proceeding is of record.  Relevant to that proceeding, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ chairing a hearing fulfill two duties to comply with this VA regulation.  These duties consist of:  (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position.  During the hearing, the presiding VLJ noted the basis of the prior determinations and the elements of the claims that were lacking to substantiate them.  The presiding VLJ sought to identify any pertinent evidence not then currently of record that might have been overlooked or was outstanding that might help to substantiate the claims.  Neither the Veteran nor his attorney asserted during or since the hearing that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise identified any prejudice in the conducting of that hearing.  The hearing focused on the elements necessary to substantiate the claims.  Consistent with Bryant, the presiding VLJ complied with the duties set forth in section 3.103(c)(2).  

As another point of clarification, the Board acknowledges the Veteran's and his attorney's repeated and extensive contentions that there was erroneous adjudicative action on the part of the RO as well as the Board, in the alleged failure to consider and decide claims pending for several years for service connection for an eye injury (due to burn injury), and residuals of burn scars.  It is contended that proper characterization of these matters now is as original claims for service connection, not petitions to reopen denied claims; and in the alternative, that at the very least, the petitions to reopen have been pending claims since 1994, providing the potential for a much earlier effective date of service connection than presently contemplated, were the claims ultimately reopened and then granted (since the RO recognizes the petitions to reopen as received February 12, 2008).  See 38 C.F.R. § 3.400(r) (law of effective dates governing reopened claims, identifying the date the petition to reopen was received as the earliest available date of claim [absent those exceptions specified in 3.156(c)]).  This much is immediately apparent -- in March 1990, at the time of an RO hearing, the Veteran withdrew claims for compensation benefits due to a burn injury, which previously had been appealed to the Board.  Whereas the Veteran has since questioned the legitimacy of this withdrawal notice, presently, the Board finds otherwise, observing that the statement of withdrawal of appeal was clear and definitive, was provided in writing and was accompanied by the Veteran's signature.  See 38 C.F.R. § 20.204 (2013).  The Veteran has since provided a November 1994 letter from a physician that he had impaired blood sugar which together with confusion from PTSD symptoms may have led him to erroneously withdraw the appeal, however, the Board has none other than indication that the Veteran was fully cognizant at the time of the hearing.  In any event, the Veteran has never formally contested the RO's withdrawal of appeal determination upon receipt of the March 1990 correspondence, and the Board considers the matter of withdrawal of that appeal to effectively be settled.  Therefore, given the withdrawal of appeal in March 1990, the RO's denial of the original claim for service connection for burn injury residuals (as well as eye injury) became final and dispositive.  See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a) (2013).  

In reference to the above, the subject remains however of exactly when the Veteran's petition to reopen the claims was received, significant again for determining the effective date of any benefits granted.  The Veteran was still able to request reopening of his claims upon presentation of "new and material" evidence, pursuant to 38 C.F.R. § 3.156(a), which he did through testimony offered at a March 18, 1994 RO hearing.  The RO denied the petitions to reopen through an August 1995 rating decision.  During a December 1995 hearing before the Board on an unrelated issue, the Veteran expressed dissatisfaction with the RO's August 1995 determination.  Indeed, the Board is willing to construe this discussion during the hearing as a valid Notice of Disagreement (NOD).  Yet the RO did not follow up with a Statement of the Case (SOC), as the next stage in the appellate process, for several years thereafter.  (The Board in this capacity notes that whereas a May 2006 filing of the Veteran intended to withdraw the claims for residuals of burn injuries, he reinstated the claims only one week later.  This will not be regarded as a genuine withdrawal of the claims therefore.)  Moreover, there was a November 2006 Board decision denying the Veteran's claim for CUE in several prior Board decisions, including in 1990 and 1999, to the extent these decisions "overlooked" a claim for service connection for burn injury residuals (issued concurrently with the previously mentioned other November 2006 Board decision on an unrelated withdrawal of appeal action for increased rating for PTSD) -- the correctness of the denial of that CUE claim is definitive and clear, since the burn injury residual claims were never properly on appeal to the Board in 1990 or 1999.  Still, this does not change the fact that the Veteran had a petition to reopen before the RO, dating back to March 18, 1994 which eventually was appealed to the Board, as it is the instant matter on appeal. 

In sum, the Board is willing to accept the premise that the date of receipt of petition to reopen is March 18, 1994.  This provides a potentially earlier effective date of benefits.  However, the Board emphasizes that is recognizing a petition to reopen dating back to 1994, rather than original pending claims for service connection going back to 1990, which rules out application of the complete scope of VA's duty to assist in original claims, such as to provide a VA Compensation and Pension examination where warranted on the facts.  See 38 C.F.R. § 3.159(c) (duty to provide examination does not apply to claims prior to reopening).  This matter will proceed as involving petitions to reopen, not original claims, but with due consideration of the evidence dating back to March 1994 from the applicable date of claim.

In August 2013, the Veteran's attorney provided additional evidence consisting of a private psychiatrist's statement, accompanied by a waiver of RO initial jurisdiction over the evidence, and it is hereby accepted into the record.  See 38 C.F.R. §§20.800, 20.1304 (2013).

In recent statements in support of the appeal, the Veteran has suggested that he is dissatisfied with the assigned evaluation for PTSD.  It is not clear whether the Veteran presently wants to pursue a claim for higher than the current assigned 70 percent rating for PTSD, or merely intends to limit the inquiry to the already appealed issue of the compensation level prior to June 10, 2004.  Moreover, the Board would not have appellate jurisdiction over any original claim for increased rating for PTSD beyond the current 70 percent level, since this issue was never decided by the RO as the Agency of Original Jurisdiction (AOJ).  Therefore, the Board refers this matter to the RO for appropriate action to determine the precise nature of the Veteran's request.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2013).
The reopened claim for service connection for an eye injury, petition to reopen service connection for burn scar residuals, and claims for increased rating for headaches, SMC, and earlier effective date for a TDIU prior to February 21, 2003 are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1. In April 1989, the RO denied the Veteran's original claim of entitlement to service connection for an eye injury (associated with a burn injury), and again denied the claim pursuant to an October 1989 rating action.  The Veteran perfected an appeal from that determination, but then decided to withdraw his appeal in March 1990.

2. He since has submitted additional evidence, however, which is so significant it must be considered in order to fairly decide this previously denied claim. 

3. The Veteran's symptomatology comprised of nervousness, anxiety and claustrophobia is already rated as part and parcel of his service-connected PTSD, and legally cannot be considered as the basis of an award of separate disability compensation. 

4. From February 21, 2003 to June 9, 2004, the Veteran's PTSD involved severe impairment, as well as reported suicidal ideation.  However, prior to February 21, 2003, there was not impairment of a similar degree and severity due to severe underlying symptomatology, or for that matter social and occupational impairment in most areas (under the revised criteria since November 7, 1996).

5. From February 21, 2003 to June 9, 2004, the Veteran was incapable of substantially gainful employment due to his PTSD, and hence meets the requirements for a TDIU on a schedular basis for this time period.


CONCLUSIONS OF LAW

1. The October 1989 RO rating decision denying service connection for an eye injury (associated with a burn injury) is a final and binding determination.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.204 (2013).

2. But there is new and material evidence since that decision to reopen this claim.  38 U.S.C.A. § 5108 (West 2002 & Supp. 2013); 38 C.F.R. § 3.156(a) (prior to August 29, 2001).

3. The criteria are not met to establish a separate compensable evaluation for nervousness, anxiety and claustrophobia, as distinct from service-connected PTSD.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14; 4.130, Diagnostic Code 9400 (2013).

4. The criteria are however met for an earlier effective date of February 21, 2003, for the award of the 70 percent evaluation for the PTSD, though at no earlier point.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b), 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 3.400, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9411 (2013).

5. The criteria also are met for an earlier effective date of February 21, 2003, for the award of the TDIU on a schedular basis.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b), 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.3, 4.15, 4.16, 4.18, 4.19 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist the Veteran

The Veterans Claims Assistance Act of 2000 (VCAA), codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  The implementing regulations are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application, inform the claimant of any information and evidence not of record:  (1) that is necessary to substantiate the claim; (2) that he is expected to provide; and (3) that VA will obtain on his behalf.  A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the so-called "fourth" requirement that VA specifically request that he provide any evidence in his possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), later codified at 38 C.F.R. § 3.159(b)(1) (2013).

In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U. S. Court of Appeals for Veterans Claims (Court/CAVC) established additional criteria as to the content of the notice to be provided in connection with a petition to reopen a previously denied and unappealed claim, requiring that VA provide a claim-specific and comprehensive definition of "new and material" evidence explaining the exact reasons the claim was previously denied so the claimant will have opportunity in response to provide the type of evidence and information needed to overcome the prior shortcomings of his claim.  See also VA Gen. Couns. Mem., para. 2, 3 (June 14, 2006) (wherein VA's Office of General Counsel issued informal guidance interpreting Kent as requiring the notice to specifically identify the kind of evidence that would overcome the prior deficiency rather than simply stating the evidence must relate to the stated basis of the prior denial).

Regarding this particular petition at issue to reopen this claim of entitlement to service connection for an eye disorder, the Board is reopening this claim and then remanding, rather than immediately deciding, the underlying claim on the merits for further evidentiary development.  Hence, a conclusive determination as to whether the VCAA's duties to notify and assist were satisfied is not required at this juncture and may be deferred pending completion of the additional claim development on remand and future readjudication of the reopened claim on its underlying merits.

As to the claims on appeal for earlier effective date for a 70 percent rating for PTSD, as well as for a TDIU, when, as here, the claim arose in another context, namely, the Veteran trying to establish his underlying entitlement to service connection for this disability (or in the alternative, initial entitlement to a TDIU), and this claim since has been granted and he has appealed a "downstream" issue such as the initial effective date assigned, the underlying claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  So, in this situation, VA is not required to provide him additional VCAA notice concerning the downstream disability rating and effective date elements of his claim.  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  According to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved.  And the RO provided him this required SOC citing the applicable statutes and regulations and containing discussion of the reasons and bases for not assigning the earlier effective dates sought.  He therefore has received all required notice concerning these claims.

Regarding the remaining claim being decided, for separate disability compensation for specified mental health related symptoms, through VCAA notice correspondence dated in May 2009, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The VCAA notice further indicated the joint obligation between VA and him in obtaining pertinent evidence and information, explaining that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records.  See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  The notice correspondence further provided explanation of the "downstream" initial disability rating and effective date elements of a claim for service connection.

The VCAA notice also should ideally precede the initial adjudication of the claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  And in this particular instance the May 2009 VCAA notice letter did just that since the RO sent it prior to first adjudicating the claim in the April 2010 rating decision that prompted this claim on appeal, so in the preferred sequence.

VA's duty to assist under the VCAA includes helping the claimant obtain relevant records, including service treatment records (STRs) and other pertinent records, such as regarding his evaluation and treatment since service, whether from VA or private healthcare providers, as well as providing an examination or obtaining a medical opinion when needed to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

To this end, the RO has taken appropriate steps to comply with this additional obligation by obtaining records of the Veteran's post-service VA and private outpatient treatment.  As well, his complete STRs also are in the file.  Relevant to his claims for earlier effective dates, the record also includes the reports of prior VA Compensation and Pension examinations, along with private treatment providers' assessments.  See 38 C.F.R. §4.1 (for purpose of application of the rating schedule accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition).  Meanwhile, in furtherance of his claims, he has provided several personal lay statements throughout the course of his appeal.  He testified during a June 2013 Travel Board hearing.  There is no indication otherwise of any further relevant evidence or information that has not been obtained and that is obtainable.  The record as it stands includes sufficient evidence to decide the claims.  Under these circumstances, no further action is necessary to assist him with these claims.
In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations.  That is to say, the record has been fully developed, and it is difficult to discern what additional guidance VA could provide him regarding what further evidence he should submit to substantiate his claims.  Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004).  

Accordingly, the Board will proceed to adjudicating these claims on the underlying merits.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand - especially here, another remand - would not serve any useful or meaningful purpose and not result in any significant benefit to the Veteran).

Governing Statutes, Regulations, Cases and Analysis

Petition to Reopen

Through an April 1989 rating decision, the RO denied the Veteran's original claim for service connection for an eye injury condition (associated with a burn injury), on the foundation that there was no indication of an actual post-service eye disorder.   Review of STRs had confirmed the underlying burn injury, if involving a relatively limited injury sustained at Fort Benning, Georgia in 1945 and not documented as injury to the eyes specifically.  However, there was no post-service eye disability apparent as a result of in-service injury.  Hence, the claim was denied for lack of current evidence of a disability.  

An October 1989 rating decision, issued upon receipt of new medical evidence, nonetheless denied the claim on an identical basis as before.  The Veteran filed a timely Notice of Disagreement (NOD), to which the RO responded with a Statement of the Case (SOC), which the Veteran answered with a VA Form 9 (Substantive Appeal to the Board).  At this stage, the claim was formally on appeal to the Board.  However, by March 1990 correspondence, the Veteran effectively withdrew his claim from appellate consideration.  Consequently, the October 1989 RO rating decision became final and binding based on the evidence then of record. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.204.

When a petition to reopen the claim is later presented under section 5108, VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

For purposes of this appeal, new and material evidence is evidence not previously submitted which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.  38 C.F.R. § 3.156(a).  The provisions of 38 C.F.R. § 3.156(a) were amended during the pendency of this appeal.  See 66 Fed. Reg. 45,620-45,632 (Aug. 29, 2001).  The revised version applies to claims filed on or after August 29, 2001. The change in the regulation does not apply to the present case as the claim to reopen was filed in March 1994. For the purpose of determining whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  See also Evans v. Brown, 9 Vet. App. 273, 283 (1996).

Here, the dispositive basis for the original denial of service connection was the lack of a qualifying post-service disability, involving an eye condition as a claimed residual of a documented in-service burn injury.  Under VA law, the very cornerstone to establish a claim for service connection comprises competent evidence of the current disability claimed.  See Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), citing Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("Compensation for service-connected injury is limited to those claims which show a present disability."); Hicks v. West, 12 Vet. App. 86, 89 (1998); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.").

Having reviewed the record in its entirety, the Board will reopen the previously denied matter.  A review of VA outpatient treatment records associated with the Veteran's electronic records claims folder ("Virtual VA") indicates an October 2012 vision consult in part for a complaint of eyes burning and watering for several months.  Another consult that month indicated dry eyes (somewhat to the contrary, but a diagnosed condition nonetheless), refractive error and cataracts.  An earlier clinical record of July 2007 denoted a finding of mild bilateral cataracts; and dry eyes due to mild bilateral blepharitis.  

The foregoing provides evidence of current eye conditions with a potential etiological relationship to the identified in-service injury.  The Board also observes in this regard, that whereas refractive error is technically considered a congenital disorder not subject to compensation under VA law (see 38 C.F.R. § 3.303(c)), such condition may still be deemed service-connected provided aggravated due to superimposed in-service injury or disease.  See again, VAOPGCPREC 82-90 (July 18, 1990).  See also Martin v. Principi, 17 Vet. App. 324, 328-39 (2003).  At the very minimum, there is now evidence of possible service-related current disability that is so significant it must be considered in evaluating the merits of the Veteran's claim, and thus, which meets the criteria for "new and material" evidence to reopen the claim.  See again, 38 C.F.R. § 3.156(a) (prior to Aug. 29, 2001).  

Accordingly, new and material evidence has been presented to reopen this claim for service connection for an eye disorder.  But the readjudication of the claim on its underlying merits (meaning on a de novo basis) is being deferred pending completion of the additional development of this claim on remand.


Compensation for Mental Health Symptomatology

Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity.  38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. 
§ 4.1 (2013).  Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes.  38 C.F.R. § 4.27.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability.  38 C.F.R. § 4.1.
In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The VA rating schedule provides that psychiatric disorders other than eating disorders, including PTSD, are to be evaluated according to a General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130.

Under that rating formula, a noncompensable evaluation is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.


A 10 percent rating requires occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication

A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating may be assigned where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessed rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.

A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.  38 C.F.R. § 4.130, Diagnostic Code 9411.

The symptoms and manifestations listed under the above rating formula are not requirements for a particular evaluation, but are examples providing guidance as to the type and degree of severity of these symptoms.  Consideration also must be given to factors outside the rating criteria in determining the level of occupational and social impairment.  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).

The Veteran has specifically sought entitlement to disability compensation for nervousness, anxiety and claustrophobia, in the form of assignment of a separate compensable evaluation from the 70 percent evaluation already in effect for service-connected PTSD.  To this extent, inasmuch as the aforementioned symptomatology clearly exists, it nonetheless has already been contemplated as part of the disability rating process for service-connected PTSD, and to assign separate compensation on this basis would therefore violate the clearly established principle of VA law against providing separate awards of compensation for the same underlying manifestation. See generally, 38 C.F.R. § 4.14 (according to the rule against "pyramiding," the evaluation of the same manifestation under various diagnoses is to be avoided); Esteban v. Brown, 6 Vet. App. 259 (1994).  See also, Brady v. Brown, 4 Vet. App. 203, 206 (1993).  

In so finding, the Board does not diminish the fact that the symptoms of anxiety and claustrophobia exist, as this much is confirmed in the numerous treatment summary letters provided by a private psychiatrist who has treated the Veteran over many years.  Regardless however, the Board must duly apply VA law in determining whether any distinct award of compensation may be premised upon such symptomatology.  To this end, the award of separate compensation for the same disability, as indicated, is expressly precluded.  The Veteran's PTSD is rated at 70 percent, and a review of the rating criteria for what warrants a 70 percent evaluation under the General Rating Formula for Mental Disorders reveals that anxiety is clearly contemplated under the provisions for a 30 percent, 50 percent, and 70 percent rating, albeit in differing levels of severity.  Presumably, claustrophobia also would be encompassed as an anxiety-related condition, and for which there is no attendant showing of total occupational and social impairment as might require the highest assignable 100 percent evaluation under 38 C.F.R. § 4.130.  Moreover, on the Veteran's most recent VA Compensation and Pension examination for mental health disorders, he was diagnosed with both PTSD and major depression, wherein it was stated that "it is hard to tease out the separate contributions of depression and PTSD to the claimant's social withdrawal and reclusiveness," thereby underscoring further the difficulty of separating service-connected PTSD from other psychiatric impairment in this case.   The examination report further details anxiety and anxiety-related symptomatology that was expressly considered in rating the Veteran's PTSD, and arriving at the determination that a 70 percent rating overall was warranted.  Throughout, anxiety symptoms have been rated as part and parcel of the Veteran's PTSD, and are properly reflected in the assigned rating for that condition.  Indeed the only scenario under which separate disability compensation for could be awarded in this instance would be if the Veteran had a distinct diagnosable anxiety/claustrophobia disorder which had not been rated as part and parcel of PTSD, and likewise, distinctly entitled him to the highest assignable rating of 100 percent.  This clearly not having been the case, VA's rule against pyramiding of ratings effectively precludes recovery. 

For these reasons, the Board is denying the claim for separate compensation for nervousness, anxiety and claustrophobia.  The preponderance of the evidence is against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).   


Earlier Effective Date for the 70 Percent Rating for the PTSD

The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400.  The general rule with regards to an award of increased disability 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) (West 2002 & Supp. 2013); 38 C.F.R. § 3.400(o)(1) (2013).  An exception to this rule applies where the evidence demonstrates that a factually ascertainable increase in disability occurred during the one-year period immediately 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); 38 C.F.R. § 3.400(o)(2).

The Court reiterated this in Harper v. Brown, 10 Vet App 125, 126 (1997), when discussing the three possible effective dates that may be assigned for a higher rating depending on the facts of the case:

(1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); 

(2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or 

(3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2) )..  

See, too, Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. May 20, 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a 
one-year grace period for filing a claim following an increase in the severity of a service-connected disability or disabilities).

In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received.  And "date of receipt" means the date on which a claim, information or evidence was received by VA.  38 C.F.R. § 3.1(r).  While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are 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."  38 C.F.R. § 3.1(p).  See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000).  The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).

Additionally, under 38 C.F.R. § 3.155(a), the Veteran or a representative of the Veteran can file an informal claim by communicating an intent to apply for one or more VA benefits.  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 claimant, it will be considered filed as of the date of receipt of the informal claim. 

Also, according to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as an informal claim for increased benefits.  The date on the VA outpatient or hospital examination will be accepted as the date of informal claim.

The Court has held that 38 U.S.C.A. § 5110(b)(2) specifically links any effective date earlier than the date of application to:  (1) evidence that an increase in disability had occurred and (2) to the receipt of an application within one year after that increase in disability.  The application referred to must be an application on the basis of which the increased rating was awarded, because there would be no reason to adjudicate the question of the effective date prior to the award of a rating increase, just as there would be no reason to assign a disability rating on a disability compensation claim until service connection had been awarded.  38 U.S.C.A. § 5110(b)(2) allows a claimant to be awarded an effective date up to one year prior to the filing of an application for an increase, if an increase to the next disability level is ascertainable, and if a claim is received within one year thereafter.  VA must review all the evidence of record, not just evidence not previously considered.  The Court has noted that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim for increase, provided also that the claim for increase is received within one year after the increase.  The Court further stated that the phrase "otherwise, the effective date shall be the date of receipt of the claim" provides the applicable effective date when a factually-ascertainable increase occurred more than one year prior to receipt of the claim for increase.  Hazan v. Gober, 10 Vet. App. 511 (1997).

It is possible, then, that a particular piece of evidence demonstrates the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis.  See DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (holding that "entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition" (citing 38 U.S.C. § 5110(a)); Tatum v. Shinseki, 24 Vet.App. 139, 145 (2010) (holding that "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date").

In this particular instance, the Veteran has contested the assigned effective date of June 10, 2004 for the award of a 70 percent evaluation for his PTSD.  Previously, he was in receipt of a 50 percent evaluation for his PTSD since the August 17, 1993 effective date of service connection for this psychiatric condition.  

The applicable rating criteria with regard to rating mental disorders including PTSD, evaluated at Diagnostic Code 9411, underwent revision effective November 7, 1996, during pendency of the relevant rating time period covered by this appeal. See 61 Fed. Reg. 52,695 (Oct. 8, 1996) (codified at 38 C.F.R. § 4.130).



Under the rating criteria in effect prior to November 7, 1996, Diagnostic Code 9411 provided, in relevant part, that a 50 percent evaluation was warranted for considerable impairment in the ability to establish or maintain effective or favorable relationships with people.  By reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels are so reduced as to result in considerable industrial impairment.

A 70 percent evaluation was assigned for severe impairment in the ability to establish or maintain effective or favorable relationships with people.  The psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment.

A 100 percent rating was warranted where the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community.  Totally incapacitating psychoneurotic symptoms border on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior.  The veteran is demonstrably unable to obtain or retain employment.  38 C.F.R. § 4.132, Diagnostic Code 9411 (1996).

The revised rating criteria (in effect as of November 7, 1996) found under the General Rating Formula for Mental Disorders have already been set forth in the Board's previous discussions, but will be recounted below in relevant part.

A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating may be assigned where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessed rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.

A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name.  38 C.F.R. § 4.130, Diagnostic Code 9411.

Generally, when a law or regulation changes during the pendency of a claim, VA must first determine whether the statute or regulation identifies the types of claims to which it applies.  If the statute or regulation does not address this subject, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects.  If this is the case, VA ordinarily should not apply the new provision to the claim.  Provided there are no resulting retroactive effects, however, VA ordinarily must apply the new provision as of the effective date of the revision.  See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000).  See also 38 U.S.C.A. § 5110(g).  The former criteria, meanwhile, may be applied both prior to and since the change in the substance of the law or regulation.


The claims file indicates that the January 1994 correspondence of Dr. P.S.L., the psychiatrist who had been treating the Veteran for many years, stated that the principal diagnoses for the Veteran were major depression and PTSD.  The Veteran's psychiatric conditions it was noted had warranted inpatient treatment in the past.  On a continuous and ongoing basis he had also required psychotherapy and substantive psychotropic medication.  He frequently had reminders of traumatic events he experienced in service which induced psychological and physiological reactions.  

The January 1998 correspondence from this same psychiatrist recounted that the Veteran's condition was chronic and complex, and the Veteran remained on psychotropic medication.  There was the potential for reminders to invoke characteristic symptoms, flashbacks and other dissociative phenomena.  There was acute anxiety and other symptoms.  The Veteran would strive hard to avoid exposure to negative precipitating stimuli.  The treatment provider verified that the basic criteria for a diagnosis of PTSD were met.

The Veteran underwent a VA Compensation and Pension examination in February 1998.  The Veteran at that time reported that he was persistently re-experiencing the traumatic events from service through dissociative flashbacks.  The Veteran had a general avoidance of fire, related to his in-service stressor.  He related that he avoided stimuli associated with the trauma and had a numbing of his general responsiveness.  Cognitive behavioral therapy training had helped him avoid thoughts and feelings associated with the trauma.  He resorted to the hobby of photography to distract him from traumatic thoughts.  He would avoid thoughts and feelings associated with the trauma, and activities and situations that aroused recollections.  Seeing depictions of fires on television reminded him of the flash fire which occurred in service after he mistakenly threw an incendiary liquid onto a fire.  He also reported feelings of detachment and estrangement from others.  Although he attended church and Masonic Lodge meetings, he preferred to isolate from most people.  He claimed to have only a small circle of friends.  He reported detachment and estrangement related to two prior marriages.  On the other hand, he was able to maintain a connection with his children.  He also described persistent symptoms of increased arousal.  He reported outbursts of anger and irritability.  This was noted during the evaluation itself at times.  He had difficulty concentrating in which he could not finish reading his newspaper.  Exaggerated startle response was also evident in response to loud noises, such as slamming doors.  He stated that such noises reminded him of the sound of grenades exploding.  

On mental status examination, he appeared on time for the appointment, and was neatly dressed and groomed.  Eye contact was good and demeanor was cooperative overall, but testy at times.  Speech seemed angry at intervals.  Articulation was good.  No pressure or latency was noted.  Thought processes were logical, coherent, and goal directed.  The Veteran denied any hallucinations, frank delusions, or other evidence of psychosis.  He denied suicidal and homicidal ideation, although he had experienced these symptoms in the past.  Mood was described as anxious and agitated, and affect appeared congruent to mood.  Thought form was abstract.  He demonstrated good judgment with a fair degree of insight into his psychological problems.  Cognitively, he scored 30/30 on a mini-mental status examination.  He appeared fully competent to manage his own finances based on the mini-mental status examination and his clinical presentation.  The overall impression of the VA examiner was that the Veteran met the criteria for a diagnosis of PTSD.  It was commented that the Veteran had been diagnosed in the past with manic depression and depression, but PTSD seemed to be the most dominant clinical picture at this point.  The Veteran also experienced some obsessive-compulsive symptoms such as repeatedly checking his door locks, and some symptoms of panic, such as fear, the need to escape, and cold sweats, although the criteria for panic attacks were not fulfilled.  A review of psychotic symptoms was negative for any thought disorder.  The diagnosis was PTSD, chronic, latent onset.  The assigned Global Assessment of Functioning (GAF) score was 45, for major impairment in work, and family relations.

Upon VA re-examination in November 1999, the Veteran reported that he had not been hospitalized since the time of the last examination, and he continued to see a private psychiatrist every other week for treatment.  It was reported that occupationally the Veteran was disabled due to back pain.  There had been some ongoing social impairment.  He made a concerted effort to meet with friends and be involved in service and social organizations to which he belonged.  However, he continued to have significant difficulty in this area.  Friends and family had been concerned that he was not socializing adequately and had become somewhat isolated.  He did have very few social contacts.  He described sleep problems, difficulty watching television, and problems with his concentration.  He lived alone and did not frequently see other people.  There were still flashbacks and trigger experiences from watching television.  He did not like using the gas range, and it bothered him to look at fire or flames or even matches.  On an objective evaluation, there was no evidence of impairment in thought process and communication.  The Veteran denied hallucinations and there was no evidence of delusions.  He did not report inappropriate behavior.  He denied suicidal ideation or homicidal ideation.  He described the ability to maintain personal hygiene and to perform other activities of daily living.  He was alert, and oriented to person, place and time.  He described some short-term memory loss due to diminished concentration.  He did report some obsessive and ritualistic behaviors including checking locks, and checking the stove.  This appeared to be consistent with hypervigiliance.  The Veteran's speech was clear, calm and of normal rate and flow as well as goal directed.  The Veteran did describe panic attacks with fear, palpitations, and shakiness.  He described that these were frequently triggered by feelings that he was going to be closed in or unable to get out.  He described a depressed and anxious mood.  He reported no difficulties with impulse control.  He described poor sleep, sleeping only 4 to 5 hours a night.  There was no active symptomatology of obsessive compulsive personality disorder, though this was a diagnosis that had been made in the past.

The assessment was that the Veteran continued to meet the criteria for PTSD, and this was considered the only appropriate active psychiatric diagnosis for this Veteran.  There was no evidence of an Axis II disorder, nor evidence of depressive symptoms, consistent with a separate, freestanding diagnosis of depressive disorder or bipolar illness.  It was believed that the Veteran's symptomatology most impaired his ability to have meaningful social and interpersonal interactions.  Given that he was unable to perform work that he would normally do due to compression fractures in the spine, the examiner did not believe that the Veteran's lack of employment or inability to work was significantly affected by his PTSD symptoms.  He could have difficulties if he should return to work based on his difficulties with interpersonal interactions as well as his difficulty with concentration.  However, it was believed that at that time, the work-related difficulties were due to his problems with pain.  The Veteran was deemed competent to manage any benefit payments in his own best interests.  The diagnosis was PTSD.  The assigned GAF score was 50, representing severe symptoms of PTSD, including ongoing occasional dissociative episodes with frequent intrusive memories and other symptoms as previously outlined.  

The December 2000 correspondence of Dr. P.S.L. states that the Veteran's PTSD was a major and well-established diagnosis which continued to be symptomatic and therefore an ongoing basis for his treatment.  According to the psychiatrist, it was clear that the Veteran's PTSD and associated symptoms antedated his 1975 back injuries and contributed significantly to his inability to return to full-time employment thereafter.  The psychiatrist's July 2001 correspondence reiterated that the Veteran's mental health condition was chronic and compounded by both physical and psychiatric components.  It was the psychiatrist's professional opinion that the Veteran was "100 percent disabled" and unable to work.  

In her January 2002 correspondence, Dr. M.H.O., private psychologist, indicated that she had treated the Veteran since 1983 for chronic depression and PTSD, and that recent current events had re-traumatized the Veteran.  Visual scenes of fire created flashbacks causing him severe distress and dissociative episodes.  The PTSD had been exacerbated as a result of these events to the point where he needed further treatment.  According to the psychologist, in view of this, the Veteran was totally disabled and unable to work as a result of his service injuries.  In a follow-up July 2002 letter, this treatment provider indicated that the Veteran continued to have traumatic reminders of events from service, flashbacks and nightmares.  According to the psychologist, "it is clear to me that [the Veteran] has very serious symptoms of PTSD and cannot possibly work."


The July 2002 letter from Dr. P.S.L. states that the Veteran continued to undergo psychotherapy and obtain psychopharmacology services.  The Veteran had always shown great responsibility towards his treatment and had experienced substantial success in many areas of life over the years.  However, he had continued to have significant variability in mood and in other symptoms with intensification in these often reflecting stress-related factors, as would be expected.  

On further VA Compensation and Pension examination of February 2003, the Veteran had not been hospitalized for psychiatric reasons since his last exam.  He had been seen on an outpatient basis, and indicated that this treatment had helped him.  When asked about psychiatric symptoms, the Veteran said he could not tolerate crowds.  For instance, he had to leave church on occasion midway through the service due to acute anxiety.  He had  had such a problem for about ten years.  He reported problems getting to and staying asleep for the previous 10 to 15 years.  He had dreams of the fire incident from service approximately three to four times per week.  He stated he dissociated if someone lit a match.  He re-experienced the stressor incident.  He had been unemployed since 1976, and felt this was due to both medical and psychiatric reasons.  He had four adult children, with whom he had a good relationship.  For leisure, the Veteran enjoyed photography.  He denied having any problems with substance abuse since the last exam.  He had no history of violence or assaultiveness.  He had not made any suicide attempts.  His psychological status was such that he was able to attend to responsibilities of self-care, family role functioning with his children, attend to his physical health, and carry out some recreational pursuits.  It appeared he was socially limited.  He did not work due to his age and medical/psychiatric reasons.  

On mental status examination, his thoughts and associations were logical and coherent.  He was not having any delusions or hallucinations.  Eye contact was good.  He was having some suicidal ideation two to three times per week, and as recently as the week of the evaluation.  He tied the exacerbation of these symptoms to the terrorist events of 9/11.  He was oriented to person, place and time.  He reported some memory loss due to concentration difficulties.  He was not obsessive or ritualistic.  His rate and flow of speech were unremarkable.  He reported some panic symptoms.  He would become short of breath and have feelings of being closed in.  He also got lightheaded.  Otherwise, it did not appear that he had classic panic attacks.  He had been experiencing these panic episodes three to four times per week for the last fifteen years.  As to any further depressive symptomatology, he stated he had felt sad more days than not over the previous month.  He was not having trouble getting out of bed in the mornings because of being depressed.  He had had crying spells two to three times per week for the previous six months, with and without precipitant and particularly upon awakening.  Appetite was adequate.  He had had no significant weight change since 1999.  Concentration was decreased.  He reported his energy to be poor, but was not excessively irritable.  He reported intrusive thoughts almost daily.  He had flashbacks, dreams, and psychological and physiological distress.  The Veteran stated he avoided watching certain television programming because it would engender panic or anxiety.  He avoided Fourth of July celebrations.  He said it made him think of incidents from service.  The Veteran did not seem to have any psychogenic amnesia of any traumatic event.  He had restricted range of affect.  He was able to have loving feelings towards his children.  He had lost interest in reading and photography.  He stated he missed going to Masonic meetings at night.  The nighttime seemed to make him more nervous and made him have intrusive thoughts of the traumatic events described.  His sleep and concentration problems had already been noted.  He had physiological distress in relation to events that reminded him of the traumatic episodes described.  When asked if he felt on guard, he stated that he "feels like something is going to happen."  The Veteran stated that he was easily startled. 

The VA examiner diagnosed PTSD; and major depression, chronic, mild.  A GAF score was assigned of 55.  According to the VA examiner, the Veteran appeared to have depressive disorder.  Technically, he continued to meet the diagnostic criteria for PTSD.  It was not clear to the examiner that the PTSD symptoms were clearly linked to social dysfunction.  However, they certainly could be, and it was hard to tease out the separate contributions of depression and PTSD to the Veteran's social withdrawal and reclusiveness.  Nonetheless, if accepting the Veteran's credibility and veracity, it was likely that many of the foregoing symptoms, such as dissociative episodes, etc., would affect the Veteran's ability to establish and maintain social relationships.  The Veteran was deemed capable of managing financial affairs on his own behalf.  According to the examiner, since the last VA exam, it did not appear that the Veteran's psychosocial functional status had changed appreciably.  He was still in the same rank of functioning.  He was able to attend to responsibilities of self-care, family role functioning with his children, attend to his physical health, and pursue limited leisure pursuits.  He was socially isolative.  

The Veteran underwent a one week period of VA inpatient psychiatric treatment in March 2003, after having experienced a fire in his home that reminded him of his trauma from the original in-service stressor.  He stated the episode of PTSD symptoms at that time was the worst he had ever experienced.  He was disassociating, having driven to the VA Medical Center (VAMC) feeling overwhelmed, with difficulty controlling his car, and having increased nightmares, flashbacks, hypervigiliance, and avoidance.  He also had significant depression with difficulty with sleep, appetite, interest, and concentration, but denied suicidality.  He had recurrent symptoms of both PTSD and depression that had been moderately controlled with medication and therapy.  The Veteran was admitted to the VAMC inpatient program for safety and stabilization.  Throughout the admission, the Veteran attended groups, was cooperative and social on the unit, sometimes watching television, sometimes reading.  He reported improvements each day, and was able to leave within a week.  

Having reviewed the foregoing evidence comprising the Veteran's overall psychiatric state and symptomatology since the August 17, 1993 effective date of service connection for PTSD, the Board will grant an earlier effective date of a 70 percent rating of February 21, 2003, and will retain assignment of the existing 50 percent rating for the prior time period from August 17, 1993 up until February 20, 2003.  In so doing, the Board has weighed the evidence before it, mindful of the duty to take a longitudinal and comprehensive approach to its inquiry.  See 38 C.F.R. § 4.2 ("It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.").  See also Ardison v. Brown, 6 Vet. App. 405, 407 (1994). 

Based on the applicable rating standard, under the former rating criteria for evaluating mental health disorders, a 70 percent disability rating required severe impairment in the ability to establish or maintain effective or favorable relationships with people, along with symptoms of such severity and persistence that there was severe impairment in the ability to obtain or retain employment.  See 38 C.F.R. § 4.132 (1996).  Then under the revised criteria, a 70 percent rating requires occupational and social impairment with deficiencies in most areas, with a set of enumerated symptoms listed thereafter (see above) for purpose of exemplification.  See 38 C.F.R. § 4.130 (2013).  As indicated, the former rating criteria may be applied to the instant matter throughout pendency of the claim, whereas the revised rating criteria may only be applied since November 7, 1996.  See again, VAOPGCPREC 7-2003.     

Applying these rating criteria to the case at hand, the Board recognizes that in March 2003 the Veteran had what was a serious exacerbation of his PTSD symptoms, following a house fire that reminded him of the verified in-service stressor, and that required a one week VA psychiatric hospitalization.  Prior to that time period, no hospitalizations were specifically required.  Since then, considering medical evidence technically outside the rating period but still relevant to this claim, the Veteran has repeatedly described this fire in his home as a significantly stressful event for him.  Moreover, on the February 2003 VA Compensation and Pension examination one month earlier, the Veteran had demonstrable suicidal ideation.  On reviewing this case history, and with due application of VA's doctrine of resolving reasonable doubt in the claimant's favor on a material issue, the Board agrees that as of February 21, 2003 (the date of examination) there was severe impairment in the ability to maintain effective interpersonal relationships as well as occupational functioning, which qualifies under the former standard for a 70 percent evaluation.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Therefore, an earlier effective date of February 21, 2003 for the assignment of the 70 percent evaluation is deemed warranted.

The remaining time period before the Board for consideration comprises August 17, 1993 through February 21, 2003, and it is determined that the criteria for a 70 percent rating were not met for this time frame.  Throughout the period under consideration, the Board observes that the Veteran had several social outlets and pastimes, and maintained a good relationship with his children.  The Board readily acknowledges that the Veteran experienced many of the characteristic symptoms of PTSD, such as flashbacks, intrusive thoughts and memories, and at times hypervigilance.  It must also be noted however that on actual objective VA examination interviews, observed symptomatology connoted relatively limited degree of impairment, as evidenced by normal speech, being alert and oriented, having no form of thought disturbance, and lack of any suicidal or homicidal ideation.  It is the case that a depressed and anxious mood was noted.  This much however does not automatically warrant any increased evaluation, given that there is no demonstration of attendant severity in accordance with the former rating criteria, or pronounced mood disturbance contemplated under the revised criteria. Notably, on VA examination February 1998, the Veteran scored 30/30 on a mini-mental status examination intended to assess cognitive functioning.  There was no indication of impulse control problems, lack of judgment, delusions or hallucinations, or obsessive-compulsive symptoms (as had been once suggested in mental health records from many years previously).   

Pertinent to application of the former rating criteria, which places a considerable degree of emphasis upon the employment capacity of the claimant, the Board still does not find that compensation is warranted at the 70 percent level prior to February 21, 2003.  Whereas there are various private treatment providers' opinions to the effect that the Veteran was not able to work as a consequence of his PTSD, there is also significant countervailing evidence from the VA examination history.  Most notably, the November 1999 VA examiner determined that the Veteran's lack of employment or inability work was not "significantly affected" by his PTSD symptoms, and instead attributed the absence of employment to a nonservice-connected lower back condition.  The VA examiner continued to find that the Veteran might have some difficulties in interpersonal interactions and with concentration if he choose to return to work, but these in and of themselves hardly suggest the "severe" type of social and industrial impairment contemplated by the former version of the rating criteria for mental health disorders.  The Board considers the VA examiner's assessment in this regard the most probative, since based on a longitudinal and in-depth clinical evaluation, and with the opportunity to review many of the existing private treatment records.  See Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (the Board may consider and evaluate the underlying basis of an opinion on a medical question, and determine whether to accept such an opinion under the circumstances).  Moreover, the Board emphasizes that under the former rating criteria, the focus is upon the cumulative effect of the Veteran's symptomatology, and how these symptoms ultimately contribute to the degree of employment capacity.  See again, 38 C.F.R. § 4.132 (1996) (criteria for a 70 percent rating -- "the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment").  Of those private clinical evaluation reports opining on the Veteran's employability, few if any identify underlying symptoms of such persistence and degree that they are causative of severe occupational impairment, as opposed to simply stating conclusions in this regard.  Some underlying finding as to symptomatology degree and persistence would ideally be needed to substantiate the conclusion given.  It is also observed that several of these private treatment evaluation reports identified a combination of nonservice-related physical conditions and mental health problems as underlying occupational limitations, and not the Veteran's PTSD alone.  Again, moreover, the Board places greater weight upon the November 1999 VA examiner's findings in this regard for the aforementioned reasons.  

As to further application of the revised criteria, since November 7, 1996, the Veteran generally has not demonstrated the characteristic enumerated symptoms equivalent to a 70 percent rating under Diagnostic Code 9411, including: suicidal ideation; obsessed rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships.  Here again, the Board notes some symptoms of social avoidance and withdrawal, but not a clear inability to maintain effective relationships.  Nor for that matter is there great difficulty in adapting to work-like circumstances based on symptoms shown, in view of the findings that nonservice-connected physical ailments were a primary precipitating factor for any employment capacity, as well as the November 1999's examiner's opinion on the subject.  

In addition, the Veteran's assigned GAF scores have included 45 at the February 1998 VA examination, and 50 at the November 1999 exam.  According to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) (DSM-IV-R), a GAF score in the 41 to 50 range is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  The foregoing GAF scores do not inherently correspond to "severe" impairment under the above rubric.  In any event, the Board places greater probative weight, as it has done throughout, upon the actual symptomatology shown, which does not on its own evidence a severe level of impairment.  See 38 C.F.R. § 4.126(a) (the rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination).

Hence, an earlier effective date than February 21, 2003 for a 70 percent evaluation is not warrant under the VA rating schedule. 

The potential application of the various other provisions of Title 38 of the Code of Federal Regulations have also been considered, including 38 C.F.R. § 3.321(b)(1), which provides procedures for assignment of an extraschedular evaluation.  Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). 

In Thun v. Peake, 22 Vet. App. 211 (2008), the Court articulated a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Second, if the schedular evaluation is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must determine whether the claimant's disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.

In this case, there initially is no basis to find that the Veteran's PTSD presents such an exceptional disability picture that the applicable schedular criteria are inadequate, particularly as the rating criteria are comprehensive, and he does not manifest nor describe symptomatology outside of these criteria.  The rating schedule is premised upon an evaluation based on occupational and/or social impairment, and he does not identify a mental health problem outside of this ambit.  Thus, the Board cannot conclude that his condition is consistent with an exceptional disability picture as to render the schedular rating criteria inadequate. 

The first stage of the standard for determining availability of an extraschedular rating not having been met, the potential application of the next two steps becomes a moot issue.  In the absence of the evidence of such factors, the Board is not required to remand this case to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1).  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Accordingly, the Board concludes that an earlier effective date of February 21, 2003 is warranted for the assignment of a 70 percent disability evaluation for PTSD, but that no earlier effective date is assignable upon the facts as found.  To the extent any greater level of compensation is sought, the preponderance of the evidence is  against the claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 


Earlier Effective Date for the TDIU

Total disability ratings are authorized for any disability or combination of disabilities provided the schedular rating is less than total, when the disabled person is unable to secure and maintain substantially gainful employment because of the severity of his service-connected disabilities.  If there is only one such disability, it must be rated as at least 60-percent disabling.  Whereas, if there are two or more disabilities, at least one must be rated as at least 40-percent disabling and there must be sufficient additional service-connected disability to bring the combined rating to at least 70 percent.  38 C.F.R. §§ 4.15, 4.16(a) (2013).  Disabilities resulting from common etiology or single accident or affecting both upper or lower extremities are considered as one collective disability for the purpose of determining whether these threshold minimum rating requirements are met.

But even if a claimant does not meet these minimum percentage rating requirements of § 4.16(a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16(b) if it is established he is indeed unemployable on account of his service-connected disabilities.

In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because this regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for this special extra-schedular consideration.  See also Barringer v. Peake, 22 Vet. App. 242 (2008) (similarly holding that the Board is precluded from assigning a TDIU on this special alternative basis, in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of Compensation and Pension Service for this initial consideration).

That said, while the procedures for assignment of a total disability rating on an extra-schedular basis would require referral to the RO for further disposition, where the record does not contain evidence that would render such claim plausible the Board may deny entitlement to an extra-schedular evaluation in the first instance.  VAOPGCPREC 6-96 (Aug. 16, 1996); see also Floyd, supra. 

The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is "[in]capable of performing the physical and mental acts required by employment," and is not based solely on whether he is unemployed or has difficulty obtaining employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment.  Id.  See also 38 C.F.R. §§ 4.1, 4.15. 

In evaluating a claim for a TDIU, the critical inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to cause unemployability.  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Other factors that may receive consideration include his employment history, level of education and vocational attainment.  See 38 C.F.R. § 4.16; see also Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991).

By comparison, the impact of any nonservice-connected disabilities, or his advancing age, are not factors taken into consideration for this purpose.  38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.

In this particular case at hand, the Veteran is trying to establish his entitlement to a TDIU prior to the currently assigned effective date of June 10, 2004.

A TDIU claim is a claim for increased compensation, so the effective date rules for increased compensation claims, already cited above in detail, apply to a TDIU claim as well.  See Hurd v. West, 13 Vet. App. 449 (2000).

Thus far, as indicated above, the Board has awarded a higher 70 percent rating for PTSD, the Veteran's one compensable service-connected disability, from February 21, 2003 through June 9, 2004.  It follows that the Veteran meets the preliminary schedular criteria for an award of a TDIU during this time period.  See 38 C.F.R. § 4.16(a).  Likewise, the Board concludes that there is sufficient indication of lack of employment capacity due to service-connected disability.  In March 2003, the Veteran underwent VA psychiatric hospitalization for one week due to PTSD exacerbation.  There is also a June 2004 VA Compensation and Pension examination report which concluded that the Veteran was now unable to maintain gainful employment, and attributed this in part to the setback the Veteran underwent following his house fire in February 2003.  Therefore, resolving reasonable doubt in the Veteran's favor, the Board will consider the criteria for a TDIU to have been met for the time period of February 21, 2003 through June 9, 2004.  An earlier effective date on this basis is granted.

As to the remaining issue of an earlier effective date for the time period back to August 17, 1993, as indicated in the remand section below, the Board is remanding this component of the claim to the RO for proper disposition of the case regarding potential recovery on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), inasmuch as the Veteran did not meet the initial schedular requirements for a TDIU until February 21, 2003.  


ORDER

New and material evidence having been received, the claim for service connection for an eye injury is reopened; the claim on appeal to this extent is granted.

A separate compensable evaluation for nervousness, anxiety and claustrophobia, as distinct from service-connected PTSD, is denied.

An earlier effective date of February 21, 2003 for the award of the 70 percent rating for the PTSD is granted, subject to the laws and regulations governing the payment of VA compensation benefits.

An earlier effective date of February 21, 2003 for the award of the TDIU also is granted on a schedular basis under 38 C.F.R. § 4.16(a), also subject to the laws and regulations governing the payment of VA compensation benefits.


REMAND

The Veteran's reopened claim for service connection for an eye injury (associated with burn injury) is being remanded for RO initial consideration on the merits, as well as for further evidentiary development, primarily, for a VA Compensation and Pension examination to ascertain whether any of the currently diagnosed bilateral eye conditions are causally related the documented in-service 1945 burn injury manifestations, regarding which the Veteran maintains he temporarily had bandages placed over his eyes for a period of about one week.  See 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(4) (2013) (VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim).  See also, McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Charles v. Principi, 16 Vet. App. 370 (2002). 

Regarding the petition to reopen service connection for residuals of burn scars, the Veteran has not yet been issued comprehensive VCAA notice on how to substantiate his claim, pursuant to the legal requirements specified where attempting to reopen a claim based on "new and material" evidence, namely, as to a claim-specific definition of what would constitute "material" evidence to reopen his claim based on the reasons for the prior denial.  Kent, supra.  A new VCAA notice letter is therefore required.  

A VA Compensation and Pension examination is deemed necessary to ascertain the current severity and manifestations of the Veteran's service-connected headache disorder, as no recent examination in this regard is presently on file.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability ...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.").  See also Caffrey v. Brown, 6 Vet. App. 377 (1994).

The claim for entitlement to SMC on the basis of the need for Aid and Attendance is premised on the degree of impairment associated with service-connected disability, and is therefore inextricably intertwined with the claims the Board is now remanding for further development.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).  See also Parker v. Brown, 7 Vet. App. 116 (1994).

Finally, on the remaining issue of entitlement to an earlier effective date than February 21, 2003 for a TDIU, whereas the actual symptomatology shown did not in its entirety warrant assignment of a 70 percent disability rating during this time period (as would meet the initial schedular criteria for a TDIU), there are nonetheless several private clinical opinions of record regarding lack of employment capacity which must be duly considered in adjudicating and determining TDIU entitlement.  Consequently, the RO should refer this claim to the VA Director, Compensation and Pension Service for consideration of whether the Veteran warrants entitlement to a TDIU prior to February 21, 2003 under 38 C.F.R. § 4.16(b) on an extraschedular basis.  
 
Accordingly, these claims are REMANDED to the RO for the following additional development and consideration:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  Expedited handling is requested.)

1. Send the Veteran another VCAA letter providing a detailed and case-specific definition of the requirement of "new and material" evidence as it pertains to the petition to reopen his claim of entitlement to service connection for residuals of burn scars, as required by the Court's holding in Kent v. Nicholson, 20 Vet. App. 1 (2006).  The correspondence issued should reflect the fact the last final denial of this claim was in an October 1989 RO rating decision.  The VCAA notice should further reflect that "material" evidence to reopen this claim would consist of evidence tending to establish a current disability involving residuals of burn scars.  

2. Obtain from the White River Junction VAMC (and/or other appropriate medical facility) all available treatment records for the Veteran.  Then associate all paper records obtained with the claims file, or in the alternative associate an electronic copy of these records with the Veteran's "Virtual VA" claims folder.

3. Forward this case to the Director of the Compensation and Pension Service or other appropriate authority for a determination of whether the Veteran was entitled to a TDIU on an extra-schedular basis under the provisions of 38 C.F.R. § 4.16(b), at any point from August 17, 1993 until February 21, 2003.

4. Schedule the Veteran for a VA compensation examination to determine the etiology of his claimed eye disorder.  All indicated tests and studies are to be performed.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the relevant history.  A notation to the effect that this record review took place should be included in the report of the examiner.

Following examination of the Veteran and a review of the record, the examiner should provide an opinion concerning the likelihood (very likely, as likely as not, or unlikely) that a current eye disorder was incurred or aggravated as a result of the Veteran's documented burn injury during military service.  The examiner is reminded that under VA law governing service connection, refractive disorder of the eye is generally deemed a congenital disorder for which compensation is not available, with the notable exception of where there has been in-service aggravation due to superimposed injury or disease.  

Where applicable, the examiner should attempt to distinguish service-connected disability of the eye from that involving nonservice-connected diabetic retinopathy.  However, please note that under VA law where not medically possible to distinguish between service-connected and nonservice-connected disability, all symptomatology of the latter must be deemed as part of the former.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).
    
All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report.

5. Schedule the Veteran for a VA examination to determine the current severity of his service-connected headaches.  All indicated tests and studies are to be performed.  In conjunction with the examination, the claims folder must be made available to the examiner for review of the relevant history.  A notation to the effect that this record review took place should be included in the report of the examiner.   

The VA examiner must indicate all present symptoms and manifestations attributable to the Veteran's service-connected headaches, in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8100.

6. Review the reports of the examinations to ensure they are responsive to the questions posed.  If not, take corrective action.  38 C.F.R. § 4.2; Stegall v. West, 11 Vet. App. 268, 271 (1998) (the Veteran is entitled to compliance with a remand directive, and the Board itself commits error as a matter of law in failing to ensure compliance).

7. Then readjudicate the claims being remanded in light of this and all other additional evidence.  If these claims continue to be denied, send the Veteran and his attorney another Supplemental Statement of the Case (SSOC) and give them opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims.

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).

No action is required of the Veteran until further notice.  However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims.  His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated.  The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim.  38 C.F.R. § 3.655. 


These claims 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. 2013).




______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs