Citation Nr: 1424167 Decision Date: 05/29/14 Archive Date: 06/06/14 DOCKET NO. 11-01 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a gastrointestinal disability, to include as secondary to posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 70 percent for PTSD. 3. Entitlement to an effective date earlier than June 15, 2010, for the grant of service connection for PTSD, to include whether there was clear and unmistakable error (CUE) in the RO's March 2009 rating decision, denying service connection for PTSD. 4. Entitlement to a temporary total disability rating due to VA hospitalization from May 19, 2009, to October 8, 2009. 5. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1969 to April 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of January 2010, September 2010, and February 2011 rating decisions of the Albuquerque, New Mexico, and St. Paul, Minnesota, Regional Offices (ROs) of the Department of Veterans Affairs (VA). The issues have been recharacterized to comport with the evidence of record. The issues of entitlement to an initial rating in excess of 70 percent for PTSD and entitlement to a TDIU are REMANDED to the agency of original jurisdiction. FINDINGS OF FACT 1. A gastrointestinal disability has not been shown during the pendency of the appeal. 2. The RO received the Veteran's original claim of service connection for PTSD on September 2, 2008. 3. By a March 2009 rating decision, the RO denied entitlement to service connection for PTSD. The Veteran did not perfect an appeal of the decision. 4. The RO received the Veteran's petition to reopen his claim of service connection for PTSD on June 15, 2010. 5. By a September 2010 rating decision, the RO granted entitlement to service connection for PTSD. 6. The March 2009 decision constituted a reasonable exercise of judgment based on the application of extant law to the facts that were then known. 7. Service connection for PTSD was awarded after the Veteran was hospitalized from the period of May 19, 2009, to October 8, 2009. CONCLUSIONS OF LAW 1. The criteria for service connection for a gastrointestinal disability, to include as secondary to PTSD, have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). 2. The criteria for an effective date earlier than June 15, 2010, for the grant of service connection for PTSD, to include whether there was clear and unmistakable error in the RO's March 2009 rating decision, have not been met. 38 U.S.C.A. §§ 5110, 5109A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.105, 3.400 (2013). 3. The criteria for a temporary total disability rating based on hospitalization from the period of May 19, 2009, to October 8, 2009, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.29 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance As to PTSD, the appeal arises, in part, from the Veteran's disagreement with the effective date following the grant of service connection. Once service connection was granted the claim was substantiated and additional notice is not required. As to the issues of entitlement to service connection for a gastrointestinal disability and entitlement to a temporary 100 percent rating for PTSD, upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters in November 2009 and June 2010 satisfied the duty to notify provisions. These letters notified the Veteran of regulations pertinent to the establishment of an effective date of the disability rating, and a temporary total disability rating, as well as substantiating a claim of service connection on a secondary basis. Thus, VA's duty notify has been met. The Veteran's available service treatment and personnel records, and VA medical treatment records have been obtained. The Board notes that the RO was not able to obtain the Veteran's complete service treatment records. The RO documented their efforts to obtain the complete service treatment records and informed the Veteran of this circumstance in a July 2010 letter. Further efforts to obtain any other service treatment records would be futile. Therefore, a remand of these issues in order to make further requests for service medical records is not necessary. The Veteran did not identify any outstanding treatment records pertinent to the appeal. He has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. VA examinations were conducted in August 2010. The record does not reflect that these examinations were inadequate for rating purposes, particularly as to whether the Veteran has a current gastrointestinal disability. The examiner noted the Veteran's complaints and provided an opinion on the matter sufficient for the Board to decide the claim. Thus, VA's duty to assist has also been met. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless. II. A Gastrointestinal Disability The Veteran seeks service connection for a gastrointestinal disability, which he contends is caused by his service-connected PTSD. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection is also warranted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). VA treatment records from Fargo and Minneapolis VA Medical Centers (VAMCs) do not show treatment for a gastrointestinal disability. The Veteran's representative acknowledges such in an April 2014 brief. In his June 2010 claim, the Veteran indicated that he had never been treated for the condition other than with over the counter medications. During an August 2010 VA examination, the Veteran gave a history of frequent heartburn since the early 1970s, which improved after he divorced his wife. He reported that he currently experiences heartburn once a week. On physical examination, the Veteran's esophageal and gastrointestinal systems were normal. The VA examiner acknowledged that the Veteran had a history of irritable bowel syndrome, constipation, and diarrhea. However, the VA examiner concluded that no diagnosis could be formulated based on the physical examination and the Veteran reported symptoms, which had essentially resolved. A gastrointestinal disability is a complex medical condition that must be shown by competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran has not shown that he is qualified through education, training, or experience to offer medical diagnoses on complex medical conditions. Thus, he is not competent to self-diagnose a gastrointestinal disability, and his opinion in this regard is of no probative value. The Veteran is competent to report symptoms possibly related to a gastrointestinal disability such as heartburn, constipation and diarrhea. However, the examiner considered the Veteran's complaints, but determined that there is no gastrointestinal disability present. Although the examiner noted that the symptoms had "resolved," the Board does not find that the Veteran has had a gastrointestinal disability during the pendency of the claim that resolved, but rather a history of such prior to the claim when reading the VA examiner's report as a whole. Thus, the current disability element of the claim is not met. See McClain v. Nicholson 21 Vet. App. 319, 321 (2007) (a claimant may be granted service connection even though the claimed disability resolves prior to VA's adjudication of the claim). In the absence of proof of a current disability, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the preponderance of the evidence is against the claim of service connection for a gastrointestinal disability; there is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). III. PTSD A. An Earlier Effective Date Earlier than June 15, 2010 The Veteran contends that the effective date for his PTSD should be the date of his original claim, filed on September 2, 2008. By a March 2009 rating decision, the RO denied entitlement to service connection for PTSD. The Veteran filed a notice of disagreement (NOD) for the denial of service connection for PTSD on May 13, 2009. VA issued a supplemental statement of the case (SOC) on November 17, 2009. The Veteran failed to timely submit a substantive appeal. Additionally, new and material evidence was not received within one year of notification of the March 2009 rating decision. Thus, the March 2009 RO decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2008). 38 C.F.R. § 3.156(b) (2013). On June 15, 2010, the RO received the Veteran's petition to reopen his claim of service connection for PTSD. In an August 2010 VA examination report, the examiner concluded that the Veteran's symptoms support a diagnosis of PTSD under the DSM-IV diagnostic criteria. The examiner opined that it was more likely than not that the Veteran's PTSD is due to exposure to danger, death, his guilt regarding aspects of America's treatment of the Vietnamese civilians, and his loss of several fellow servicemen during the Vietnam war, including a fear of hostile military activity. By a September 2010 rating decision, the RO granted entitlement to service connection for PTSD based primarily on the VA examiner's August 2010 VA examiner's opinion. The RO set the effective date for the award of service connection as June 15, 2010-the date of receipt of the claim to reopen. The Veteran disagrees with the assigned effective date of the award of service connection and he contends that the effective date should be earlier-the date of his original claim, September 2, 2008. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. For service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service. 38 C.F.R. § 3.400(b)(2). Because the March 2009 RO decision is final, the claim by which the Veteran was granted service connection for PTSD, and which led to this appeal, is generally considered a claim to reopen a previously denied claim based on the receipt of new and material evidence. See 38 C.F.R. §§ 3.156(a), 3.160(d), (e) (2013). When a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. See Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008); see also 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2). Under this analysis, the effective date for the award of service connection can be no earlier than June 15, 2010-the date of receipt of the claim to reopen. However, 38 C.F.R. § 3.156(c) provides an exception to this rule. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. As relevant official service department records were not associated with the claims file after the March 2009 rating decision, the provisions of 38 C.F.R. § 3.156(c) do not apply. Additionally, an earlier effective date may be warranted when the award of compensation is based on a liberalizing change in law or VA issue. See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114 (2013). The RO granted the claim, in part, based on the fact that the Veteran's stressor was related to fear of hostile military action. See 38 C.F.R. § 3.304(f)(3). This provision was a revision to the PTSD regulations that allowed for relaxed stressor verification underlying a PTSD diagnosis. Section 3.114 is no applicable in the Veteran's case, however, because the date of the Veteran's claim to reopen and assigned effective date of June 15, 2010, is earlier than the effective date of the liberalizing law, which is July 13, 2010. See 75 Fed. Reg. 39843 (July 13, 2010), effective date corrected 75 Fed. Reg. 41092 (July 15, 2010). Therefore, the Board concludes that the criteria for an effective date earlier than June 15, 2010, for the award of service connection for PTSD have not been met. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Other than presenting new and material evidence as the Veteran did, the only way to overcome the finality of a decision is to request revision of the decision based on CUE. Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). CUE is established when the following conditions have been met: (1) either the correct facts were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the alleged error is "undebatable," not merely a "disagreement as to how the facts were weighed or evaluated"; and (3) the error "manifestly changed the outcome" of the prior decision. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed.Cir.1999) (expressly adopting the "manifestly changed the outcome" standard). CUE must be pled with some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true would be CUE on its face, the claimant must also give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet.App. 25, 30-31 (1997). As set forth in the November 2010 NOD, the Veteran asserts that service connection should have been awarded when the rating decision was issued in March 2009. The Veteran argues that service connection for PTSD was warranted because VA treatment records showed that the Veteran had been diagnosed with PTSD. The Veteran also contends that the RO's finding that there was no verifiable combat stressor was a clear error. Specifically, he asserts that VA was in possession of evidence verifying that the Veteran was on guard duty near an explosion. The record that existed at the time of the March 2009 decision consisted of relevant evidence primarily comprised of the Veteran's service treatment records, an excerpt from an Operational Report dated in August 1970, VA treatment records, and the Veteran's statements. In his statements, the Veteran reported that he was guarding an ammunition wharf at the time of an explosion some time before 1975 or 1976. The excerpt of the Operational Report shows that a small satchel charge exploded near an ammunition wharf on June 15, 1970. The Report, however, does not contain information identifying the unit affected by the explosion or the location of the explosion. The VA treatment records show that the Veteran had been diagnosed with non-combat related PTSD. In a March 2009 decision, the RO denied service connection because there was no evidence of a verifiable in-service stressor and the medical evidence of record did not show a diagnosis of PTSD in accordance with the DSM-IV diagnostic criteria, both of which are necessary to establish service connection for PTSD. 38 C.F.R. §§ 3.304(f), 4.125 (2008). When considering CUE, the determination is to be made based on the evidence and law that existed at the time of the prior decision in question. Russell, 3 Vet. App. at 313-14. Current medical evidence of PTSD related to fear of hostile military activity may not be applied to the RO's determination in March 2009 because the August 2010 VA examination was not yet created and section 3.304(f)(3) had not yet been revised. Given these facts, the Board concludes that the March 2009 decision constituted a reasonable exercise of judgment based on the application of extant law to the facts that were then known. The RO determined that there was no current diagnosis or a verified stressor. Thus, even if a PTSD diagnosis is accepted, there would not be CUE because the error would not manifestly change the outcome of the decision. The RO properly applied the regulations to the facts in determining that a stressor had not been verified. At the least, the finding is not undebatably in error. Accordingly, CUE was not committed in the March 2009 decision that denied service connection for PTSD, and the request to revise the decision based on CUE is denied. Lastly, the Board notes that the provisions of the VCAA are not applicable to a "claim" based on CUE. See Parker v. Principi, 15 Vet. App. 407, 412 (2002) (citing Livesay v. Principi, 15 Vet. App. 165 (2001)). In Livesay, the United States Court of Appeals for Veterans Claims (Court) noted that allegations of CUE are not conventional appeals and are fundamentally different from other kinds of action in the VA adjudicative process. Because the Veteran is not pursuing a claim for benefits, but rather is collaterally attacking a prior final decision, the duties to notify and assist as set forth in the VCAA are not applicable. 15 Vet. App. at 178-79. B. A Temporary Total Disability The Veteran seeks a temporary total disability rating for PTSD based on participation in the SAARTP (Substance Abuse Residential Rehabilitation Treatment Program) program from May 19, 2009, to October 8, 2009, at an Albuquerque VAMC-affiliated facility. From May 19, 2009, to October 8, 2009, the Veteran had a pending claim for service connection for PTSD. The RO denied the claim in a March 2009 decision, which became final after the Veteran filed a NOD but failed to perfect an appeal. In June 2010, the Veteran filed a second claim for service connection for PTSD, which was granted, effective June 15, 2010. In the previous section, the Board found that an earlier effective date for the award of service connection for PTSD is not warranted. A total disability rating for hospitalization will be assigned when it is established that a service-connected disability required hospital treatment for a period in excess of 21 days. 38 C.F.R. § 4.29. While VA treatment records show that the Veteran was hospitalized for PTSD in excess of 21 days, from the period of May 19, 2009, to October 8, 2009, service connection for PTSD was not effective until June 15, 2010. The provisions of § 4.29 only apply to hospitalizations arising from a service-connected disability. Id. As service connection for PTSD was not established before or during the Veteran's hospitalization, a temporary total disability rating is not warranted under 38 C.F.R. § 4.29. Accordingly, the Board need not analyze whether participation in the SAARTP program constitutes hospitalization under 38 C.F.R. § 4.29. ORDER Service connection for a gastrointestinal disability, to include as secondary to PTSD, is denied. An effective date earlier than June 15, 2010, for the grant of service connection for PTSD, to include on the basis of clear and unmistakable error in the RO's March 2009 rating decision, is denied. A temporary total disability rating due to VA hospitalization from May 19, 2009, to October 8, 2009, is denied. REMAND The evidence of record indicates that the Veteran's service-connected PTSD may have worsened since his most recent August 2010 VA psychiatric examination. The Veteran's representative asserts that a new VA examination is warranted. As VA examination is required under the duty to assist, the Board finds that the PTSD rating claim must be remanded. The Veteran's claim for TDIU is also remanded, as it is inextricably intertwined with his claim for a higher initial rating for PTSD. More recent VA treatment records should be obtained in light of the remand. Accordingly, these issues are REMANDED for the following actions: 1. Obtain the Veteran's more recent VA treatment records and associate the records with the claims folder. 2. Thereafter, schedule the Veteran for a VA psychiatric examination by an appropriate medical professional. The examiner must review the entire claims file, to include all electronic files. The examiner is to determine the current severity of the Veteran's PTSD. The examiner is to elicit information regarding the Veteran's education, training, and work history. The examiner is to report how the Veteran's PTSD impacts his ability to work. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. Finally, readjudicate the issues remaining on appeal. If either benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs