Citation Nr: 1621874 Decision Date: 06/01/16 Archive Date: 06/13/16 DOCKET NO. 15-04 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an effective date prior to November 5, 2013 for a 100 percent rating for post-traumatic stress disorder (PTSD). 2. Entitlement to an effective date prior to November 5, 2013 for an award of special monthly compensation (SMC). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service in the Air Force from December 1964 to September 1968. His awards and decorations include the Vietnam Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2014 rating decision of the Muskogee, Oklahoma, regional office (RO) of the Department of Veterans Affairs (VA). The notice of disagreement received by VA in June 2014 with the April 2014 rating decision that granted both the 100 percent rating for PTSD and the SMC clearly intended to initiate an appeal of the November 5, 2013 effective date for each award. Unfortunately, the September 2014 statement of the case addressed only the claim for an earlier effective date for the 100 percent rating for PTSD, and this is the only issue that has been certified to the Board. However, as the effective date for SMC is inextricably intertwined with that of the 100 percent rating for PTSD for at least part of the period in question, and given that the laws and regulations that govern the effective date of SMC are the same as that provided to the Veteran in the statement of the case, the Board can and will assume jurisdiction of this matter without prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In a written statement received in April 2016, the Veteran appears to have raised the issue of entitlement to service connection for lung cancer. The Veteran is advised that his statements do not meet the standards of an intent to file (3.155(b)) or those of a complete claim under 38 C.F.R. § 3.155(a). The AOJ should notify the Veteran as to the procedures required under 38 C.F.R. § 3.155 for filing a claim for VA benefits. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Entitlement to service connection for PTSD was granted in a July 2005 rating decision which established a 30 percent rating for this disability from the date of the September 2, 2003 claim; the Veteran did not submit a notice of disagreement with this decision, no new and material evidence was received; thus, it is final. 2. A January 2008 rating decision assigned a 50 percent rating for PTSD (effective April 13, 2007); the Veteran did not submit a notice of disagreement with this decision, no new and material evidence was received during the period in which an appeal could have been initiated, and the decision is final. 3. During the period between January 2008 and March 14, 2011, the Veteran did not submit a claim for an increased rating for PTSD, and there were no VA or private medical records that would constitute an informal claim for an increased rating. 4. On March 14, 2011, the Veteran submitted a private medical examination dated February 2011; the evidence was within the competence of the physician, shows the reasonable probability of entitlement to benefits, and is accepted as an informal claim for an increased rating for PTSD. 5. The evidence shows that the Veteran's PTSD was productive of total occupational and social impairment as of March 14, 2011. 6. Entitlement to service connection for coronary artery disease (CAD) was established in a May 2011 rating decision with a 60 percent rating effective from September 2, 2003; entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) was also established as of September 2, 2003 based on both CAD and PTSD. 7. As of March 14, 2011, the Veteran has a 100 percent scheduler rating for PTSD and a 60 percent scheduler rating for CAD. 8. Entitlement to SMC was not raised by the record at the time of the May 2011 rating decision. 9. Prior to March 14, 2011, the Veteran's PTSD or CAD did not solely render the Veteran unable to secure or follow gainful occupation (TDIU) on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 14, 2011, but no earlier, for a 100 percent rating for post-traumatic stress disorder have been met. 38 U.S.C.A. § 5110(b)(2) (West 2014); 38 C.F.R. § 3.157(b)(2) (2010); 38 C.F.R. § 3.400 (o)(1)(2) (2015). 2. The criteria for an effective date of March 14, 2011, but no earlier, for special monthly compensation have been met. 38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. §§ 3.350(i), 3.400(o) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duty to notify was satisfied by a letter on January 2014. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In any case, this appeal concerns earlier effective dates and the Veteran, who is represented by an attorney, received a statement of the case with the appriopriate regulation(s). The Board also finds that the duty to assist has been met. The Veteran's VA treatment records have also been obtained, and he has submitted private medical records in support of his claim. He has declined his right to a hearing. The Veteran's attorney does not contend that VA has in any way failed in the duty to notify or duty to assist. There is no indication that there is any outstanding relevant evidence, and the Board will proceed with consideration of the Veteran's appeal. Earlier Effective Date The Veteran, through his attorney, contends that he is entitled to a 100 percent scheduler rating for PTSD effective from the initial date of service connection on September 2, 2003. They note that this would also make his award of SMC effective from that date. The Veteran's attorney has presented several theories of entitlement in support of their claim. First, he asserts that the Veteran's PTSD has been productive of total social and occupational impairment since the initial date of service connection (September 2, 2003), and is therefore entitled to a 100 percent rating as of that date, also making him eligible for SMC as of that date. In the alternative, the Veteran and his attorney assert that the May 2011 rating decision that granted the Veteran entitlement to TDIU from the initial date of service connection was obligated to consider entitlement to SMC, as it was raised by the record. In an October 2013 and April 2014 statements, the attorney stated that there should have been a finding that the award of TDIU was solely due to the Veteran's PTSD, which when considered with the 60 percent rating assigned for the Veteran's service connected CAD would meet the criteria for SMC. Finally, in a March 2013 statement the Veteran and his attorney believe that there should be a finding that the Veteran's CAD was the sole basis for TDIU, and that the Veteran's PTSD should be rated as at least 70 percent disabling from the initial date of service connection. They note that this would also provide a basis for an earlier award of SMC. The Board will address these arguments after reviewing the long and confusing history of the Veteran's claims. The Veteran submitted his original claim for service connection for PTSD on September 2, 2003. His claim was also accepted as a claim for nonservice-connected pension. Entitlement to nonservice-connected pension was granted in an April 2004 rating decision. The decision states that his disabilities that were considered were CAD, anxiety, and a right ankle fracture. The Veteran did not have any service connected disabilities at the time of this grant. Entitlement to service connection for PTSD was granted in a July 2005 rating decision. The effective date of service connection was the September 2, 2003 date of receipt of the claim, and a 30 percent rating was assigned. The Veteran was notified of this decision and provided with his appellate rights in July 2005, but he did not submit a notice of disagreement or file additional pertient evidence within one yer of this rating decision. Therefore, the decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.105(a), 3.156(b). The Veteran submitted a claim for TDIU in August 2005. At the time of this claim, his only service connected disability was the PTSD. His claim was denied in a December 2005 rating decision on the basis that the scheduler criteria had not been met and that his service-connected disability was not shown by the evidence to result in him being unemployable. He submitted a notice of disagreement with this decision in September 2006, was provided with a statement of the case in March 2007, and finalized his appeal of this issue with the submission of a substantive appeal in April 2007 and this appeal when to the Board for review. See 38 C.F.R. § 20.200 (2015). In the meantime, the Veteran submitted a claim for an increased rating for PTSD in April 2007. A January 2008 rating decision increased the rating to 50 percent, effective from the April 13, 2007 date of the claim. The Veteran was notified of this decision and provided his appellate rights in a January 2008 letter. He did not submit a notice of disagreement, and he did not submit any new and material evidence in support of his claim within the appeal period. The January 2008 rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.105(a), 3.156(b) (2015). The Board denied entitlement to TDIU in a May 2010 decision. The Veteran appealed this decision to United States Court of Appeals for Veterans Claims (Court). In an October 2010 order, the Court granted a Joint Motion to Remand the appeal to the Board, and directed the Board to provide additional reasons and bases as to why TDIU on an extraschedular basis was not considered. In April 2011, the Board determined that the criteria for extraschedular consideration had been met, and remanded the claim so that it could be referred to the Director, Compensation Service for extraschedular consideration. Meanwhile, in a May 2011 rating decision, it was noted that CAD had recently been added to the list of diseases presumed to be the result of herbicide exposure. Service connection for CAD was granted, and a 60 percent rating was assigned from the September 2, 2003 date of his original claim. Furthermore, as the scheduler criteria were then met, entitlement to TDIU was granted, also effective from the September 2, 2003 date of the original claims for service connection for PTSD and CAD. The decision noted the April 2004 grant of NSC pension, and stated that grant had been based on a finding that the Veteran's CAD rendered him unemployable. The May 2011 rating decision stated: This decision now awards service connection for CAD at 60% disabling, the same disability based on the same evidence for which VA awarded nonservice-connected pension, and PTSD at 30% disabling on September 2, 2003. You are therefore entitled to a TDIU rating effective from September 2, 2003. We have granted a total service-connected evaluation for individual unemployability because you are not able to obtain or maintain employment as a result of your service connected disabilities of CAD and PTSD. (Emphasis added.) In a September 2011 letter, the Veteran's attorney submitted what he described as a notice of disagreement with the May 2011 rating decision. The letter noted that the Board's remand of TDIU for extraschedular consideration, and further noted that if the award of TDIU was based on PTSD alone, then the Veteran would be eligible for SMC. Therefore, it was requested that the Board's remand instructions regarding referral to the Director, Compensation Service should still be completed. This letter was accepted as a claim for SMC by the AOJ. In a June 2012 Administrative Review, the Director of Compensation Service determined that the Veteran's PTSD did not prevent him from engaging in a substantially occupational occupation at any time during the relevant period, so that entitlement to TDIU benefits on an extra-schedular basis due solely to PTSD was not established. On March 14, 2011, the report of a February 2011 private psychiatric evaluation was received from the Veteran's attorney. The examiner notes that the Veteran lived by himself in a primitive structure in the woods, and that he rarely came into town due to his anxiety. He opined that the Veteran's PTSD prevented him from securing or following a substantially gainful occupation. A letter from the Veteran's attorney received on March 28, 2013 states the Veteran should be entitled to an increased rating for his PTSD. The letter goes on to state that the Veteran should be rated at 70 percent for PTSD. Entitlement to SMC was denied in an April 2013 rating decision. A notice of disagreement with this decision was received in June 2013, and a statement of the case was issued for the claim for entitlement to SMC in August 2013. A substantive appeal was received by VA in October 2013. However, since this issue was granted, it was never certified and transferred to the Board. A November 13, 2013 letter from the Veteran's attorney again argued that the Veteran was entitled to a 100 percent rating for his PTSD. In support of this argument, he referenced the previously submitted February 2011 private examination report, and provided a November 5, 2013 addendum stating that the Veteran's PTSD was solely responsible for his level of disability. The Veteran was provided with a VA fee basis examination of his PTSD in February 2014. The examiner found that the PTSD was productive of total occupational and social impairment. In an April 2014 rating decision, the November 2013 letter was referred to as a claim for an increased rating for PTSD. This decision increased the rating to 100 percent, effective from the November 5, 2013 date of the addendum to the private psychiatric evaluation. Entitlement to SMC was also granted, effective from November 5, 2013. A notice of disagreement with this decision was received in May 2014, which initiated the current appeal. Effective Date for Increased Rating The Board finds that entitlement to an effective date of March 14, 2011 is warranted for the 100 percent rating for the Veteran's PTSD. This is the initial date of receipt of the report of the February 2011 private psychiatric examination. In general, 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 the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date is the date of receipt of the claim. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established. 38 C.F.R. § 3.400(o)(2). If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98 (1998). Under the regulations in effect in March 2011, the date of receipt of evidence from a private physician or layman would be accepted as an informal claim for increase when the evidence furnished by or on behalf of the Veteran is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. See 38 C.F.R. § 3.157(b)(2) (2010). The Board finds that the private examination received on March 14, 2011 meets the requirements of an informal claim under 38 C.F.R. § 3.157(b)(2). The Board notes that the doctor who conducted the examination is a board certified psychiatrist, as well as a former VA physician, and as such was competent to provide the evidence. It also provided an opinion that the Veteran's PTSD was productive of total occupational impairment, and includes evidence suggestive that there was total social impairment as well. Total occupational and social impairment merits a 100 percent rating for PTSD. See 38 C.F.R. § 4.130, Code 9411. This informal claim remained unaddressed until the April 2014 rating decision granted the 100 percent rating. A review of the Veteran's VA treatment records for the year prior to receipt of the March 14, 2011 informal claim are negative for any examination or treatment for PTSD. Therefore, there is no basis on which the Board could find that the increase in disability was factually ascertainable within one year prior to the receipt of the claim. The February 2011 private examiner opines that the PTSD has been productive of at least total occupational impairment from 2003. However, taken at face value, it would demonstrate that the increase occurred more than one year prior to the informal claim, meaning the increase is effective the date of receipt of the claim, which is March 14, 2011. 38 C.F.R. § 3.400(o)(1), (2). Additionally, as complete claim or intent to file a claim for an increase was not received within 1 year of the date of the report of examination, hospitalization, or medical treatment, then the informal claim rule of 3.157(b)(2) applies (and McGrath v. Gober does not), which states that the effective date for private evidence will be the date of receipt. The Board has considered entitlement to an effective date prior to March 14, 2011 for the Veteran's 100 percent rating for PTSD but this is not supported by the evidence. The Veteran's previous claim for an increased rating for PTSD was submitted in April 2007 and resulted in the 50 percent rating assigned in the January 2008 rating decision. As noted, this rating decision is final. Any unaddressed claims for an increased rating dated prior to this are subsumed by the January 2008 rating decision. Additionally, the Veteran and his attorney have not claimed clear and unmistakeable error in this rating decision. See Robinson v. Peake, 21 Vet. App. 545, 554 (2008) (explaining that the Board may assume that "an experienced attorney in veteran's law . . . says what he means and means what he says"). The Board has reviewed all communications by the Veteran and his representatives between January 2008 and March 2011 in order to determine whether or not any of these constituted an unaddressed claim for an increased rating. The Board finds that there were no unaddressed claims. No communication submitted between January 2008 and March 14, 2011 expressed a desire for an increased scheduler rating for PTSD. The Board has also reviewed the VA medical records in order to determine if there are any that would constitute an informal claim for an increased rating under 38 C.F.R. § 3.157. However, it does not appear that the Veteran received any VA treatment for PTSD between January 2008 and March 2011. No other private medical records were submitted during this period. Therefore, as the earliest unaddressed formal or informal claim for an increased rating for PTSD found in the record is the private medical report received on March 14, 2011, this is the earliest effective date that can be established. 38 C.F.R. § 3.157(b)(2). Effective Date for SMC The Board notes that the March 14, 2011 effective date for the 100 percent rating for PTSD also provides a basis for a March 14, 2011 effective date for SMC. SMC is payable when the veteran has a single service-connected disability rated as 100 percent disabling and additional service-connected disability or disabilities independently ratable at 60 percent. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). The rating for the Veteran's CAD has been 60 percent from September 2, 2003. Therefore, the criteria for SMC were met as of March 14, 2011, which is the date that the 100 percent rating for PTSD is now effective, giving him one service connected disability rated as 100 percent disabling and an additional service connected disability independently ratable at 60 percent. The Board has considered entitlement to effective dates prior to March 14, 2011 both the Veteran's 100 percent rating for SMC, but this is not supported by the evidence. The Board has already addressed the contention that the Veteran's PTSD should be rated as 100 percent before March 14, 2011, and the reasons and bases as to why this is precluded have been discussed. Additional theories of entitlement to an effective date as early as September 2, 2003 for SMC have been advanced. The primary theory is that the Veteran's PTSD should be declared the sole basis for the TDIU that was awarded effective from September 2, 2003. This would provide a basis for a finding that there was a single service-connected disability rated as 100 percent disabling which, when considered with the 60 percent rating for PTSD, would meet the criteria for SMC. See Bradley v. Shinseki, 22 Vet. App. 280 (2008). The Board notes that the appeal for entitlement to TDIU that was previously before the Board in May 2010 and April 2011 was resolved when TDIU was granted in the May 2011 rating decision. As recognized by the Veteran and his attorney, in order for an effective date for SMC from 2003 to be possible, there must have been a duty to consider it raised by the record at the time of the May 2011 rating decision based on the well-established principal that benefits should be maximized to the greatest extent allowed by law and regulation. See AB v. Brown, 6 Vet. App. 35 (1993). In other words, the SMC would have to be considered part of the original claim for TDIU, so that the claim for TDIU was not truly final until SMC was adjudicated, and SMC could be effective from that September 2003. The Board finds that entitlement to SMC was not raised by the record at the time of the May 2011 rating decision. At the time of that decision, entitlement to service connection was established for only two disabilities: the CAD rated as 60 percent disabling, and the PTSD rated as 50 percent disabling. As there was no single disability rated as 100 percent disabling, SMC was not raised. It follows that as SMC was not yet applicable, it was not for consideration. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); Bradley v. Shinseki, 22 Vet. App. 280, 294 (2008). However, even if the Board were to consider the issue to have been raised as part of the original claim for TDIU, it is unable to find that the Veteran's TDIU was based solely on PTSD. The May 2011 rating decision states that TDIU was awarded "as a result of your service connected disabilities of CAD and PTSD." Additionally, prior to the effective dates of March 14, 2011 for both the 100 percent rating for PTSD and SMC, the rating for PTSD was only 50 percent. This does not meet the scheduler criteria for an award of TDIU, which means that a finding that TDIU was awarded solely due to PTSD would have to be on an extraschedular basis. See 38 C.F.R. § 4.16(a), (b) (2015). The Board is precluded from awarding extraschedular benefits in the first instance. The Director of Compensation considered entitlement to extra-schedular consideration for a grant of TDIU based solely on PTSD in June 2012. The evidence considered by the Director included the February 2011 private examination report. The Director noted that there was no objective evidence to support the Veteran's assertion to the private examiner that he had worked over 500 jobs. In fact, the objective evidence showed only three years of earnings during the previous 27 years. The Director also noted that the private examiner did not address the Veteran's frequent and continuous use of marijuana and the effects this may have on past employment or ability to engage in a substantially gainful occupation. The Director concluded that considering the Veteran's high school education level and past employment as a carpenter, the available evidence did not show his PTSD alone prevented him from engaging in a substantially gainful occupation at any time. There was no evidence of emergency treatment or hospitalizations for PTSD, and no objective evidence from past employers that PTSD impacted his employability. The Director found that there was no basis for an award of TDIU solely due to PTSD on an extra-schedular basis. The Board notes the Director's decision is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence. It is simply a decision that is adopted by the RO and reviewed de novo by the Board. Wages v. McDonald, 27 Vet. App. 233, 239 (2015) Based on its de novo review of all pertinent medical and lay evidence, the Board finds there is no basis for an award of TDIU based solely on PTSD. The Board notes that the February 2011 examiner appears to rely in part on the fact that the Veteran lives alone in a cabin in the woods without electricity or running water as evidence that his PTSD results in extreme isolation that effects his employability. However, this examiner did not discuss the report of a July 1983 VA neuropsychiatric examination which shows that the Veteran was already unemployed and living in this isolated location many years before he was diagnosed with PTSD. He was examined for PTSD at that time, but the mental status examination states that there was no evidence for PTSD or any other psychiatric disability other than an inadequate personality disorder with poor socialization skills. Based on this report, the Board finds that the fact the Veteran was living in his isolated location in 2003 does not support a conclusion that PTSD was productive of total occupational impairment. As the Veteran's TDIU was not due solely to his PTSD, there is no basis for an award of SMC prior to March 14, 2011. Finally, the Board has also considered the contention that the Veteran's CAD was the sole basis for the award of TDIU, based on the belief that it was the sole basis for the award of nonservice-connected pension, as indicated in the May 2011 rating decision. The Board observes that April 2004 rating decision that granted nonservice-connected pension specifically refers not only to the CAD but also anxiety and the residuals of a right ankle fracture to determine the Veteran was unable to secure and follow a substantially gainful occupation. The May 2011 rating decision also refers to both TDIU and CAD in the award of TDIU. Finally, even if there were to be a finding that CAD was the sole basis of an award of TDIU and therefore considered as 100 percent disabling, there would still be no basis for an award of SMC prior to March 14, 2011. The Veteran's PTSD was rated as no more than 50 percent disabling prior to that date, which means that the criteria for SMC would not have been met. The Veteran does not contend that he was housebound or in need of aid and attendance prior to March 14, 2011. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Therefore, the Board concludes that the earliest possible effective date for SMC is March 14, 2011, and an establishment of an effective date as early as 2003 is not warranted. ORDER Entitlement to an effective date of March 14, 2011, but no earlier, for a 100 percent rating for post-traumatic stress disorder is granted. Entitlement to an effective date of March 14, 2011, but no earlier, for special monthly compensation is granted. ____________________________________________ P. Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs