Citation Nr: 1804167	
Decision Date: 01/23/18    Archive Date: 01/31/18

DOCKET NO.  16-19 363A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to August 24, 2016.

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to August 24, 2016.

3.  Whether the amount of past due benefits the Veteran received from the rating decision dated June 18, 2015 was correct, based on additional compensation benefits for the Veteran's dependent spouse.


REPRESENTATION

Veteran represented by:	Dennis L. Peterson, Attorney



ATTORNEY FOR THE BOARD

M. Espinoza, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1967 to June 1969. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) of the Appeals Management Center.  Jurisdiction rests with the VA Regional Office (RO) in St. Paul, Minnesota. 

The June 2015 rating decision effectuated a June 2015 Board decision which granted service connection for PTSD.  The June 2015 rating decision granted service connection for PTSD effective October 30, 2009 and granted a 30 percent evaluation from the date service connection was established.  Thereafter, an October 2016 rating decision granted a 100 percent evaluation for PTSD effective August 24, 2016.  However, as the October 2016 rating decision, allowing for a 100 percent evaluation for PTSD effective August 24, 2016, does not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities for the entire appeal period, the Veteran's appeal as to the period prior to August 24, 2016, remains in appellate status.  AB v. Brown, 6 Vet. App. 35 (1993) (holding that a grant of a higher rating during the course of an appeal, but less than the maximum benefits allowable, does not abrogate the appeal).

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim expressing disagreement with an initial evaluation assigned, when such claim is raised by the record.  During the pendency of his claim regarding disagreement of the initial evaluation assigned for PTSD, the Veteran's representative, in an August 2016 statement, asserted the Veteran was unemployable due to his PTSD.  Thus, the Board concludes that the Court's holding in Rice is applicable, and the TDIU claim is properly before the Board, and thus, the issue of entitlement to a TDIU prior to August 24, 2016 has been listed on the title page.  As the Veteran's only other service-connected disability is tinnitus, rated 10 percent, consideration of entitlement to a TDIU from August 24, 2016 is not for consideration under 38 U.S.C. § 1114(s).  See Bradley v. Peake, 22 Vet. App. 280 (2008) (A TDIU could be warranted in addition to a schedular 100 percent evaluation if the TDIU could be granted for a disability other than the disability for which a 100 percent rating was in effect.)

In a May 2016 VA Form 9, substantive appeal, which perfected the Veteran's appeal regarding disagreement with the initial evaluation assigned for his PTSD, the Veteran indicated he desired a video conference hearing before a Veterans Law Judge.  Thereafter, in an October 2016 statement, the Veteran's representative withdrew the hearing request.  However, in a March 2017 correspondence, the Veteran, in conjunction with his representative, submitted correspondence stating a video conference hearing before a Veterans Law Judge was desired.  Thus, the Board sought clarification as to if the Veteran desired a hearing before a Veterans Law Judge, and in December 2017 correspondence, the Veteran's representative withdrew all requests for a Board hearing.  Thus, the hearing request is deemed withdrawn and the Board may proceed with appellate review.  38 C.F.R. § 20.704 (e) (2017).  

Since the most recent issuance of a supplement statement of the case, issued for entitlement to an initial evaluation in excess of 30 percent for PTSD prior to August 24, 2016, then characterized as entitlement to an earlier effective date prior to August 24, 2016 for PTSD, currently evaluated as 100 percent disabling, additional evidence in the form of a December 2016 private medical letter addressing the Veteran's PTSD was associated with the record.  In this regard, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests consideration by the Agency of Original Jurisdiction (AOJ).  See VBA Fast Letter 14-02.  Here, the Veteran's substantive appeal for the relevant issue was filed after February 2, 2013, and the record reflects that the additional evidence was submitted by the Veteran in conjunction with his representative.  Nonetheless, in a December 2017 statement, Veteran's representative waived AOJ consideration of any additional evidence.  Thus, Board may proceed with appellate review.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2012).

The issues of entitlement to an initial evaluation in excess of 30 percent for PTSD prior to August 24, 2016 and entitlement to TDIU prior to August 24, 2016, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  A June 18, 2015 rating decision, granted service connection for PTSD, resulting in a combined disability rating of 40 percent, effective October 30, 2009. 

2.  In December 2015, the Veteran submitted a VA Form 21-686c, Declaration of Status of Dependents, in which he identified his wife by name and social security number and listed the month and date of their marriage

3.  The amount of past due benefits the Veteran received from the rating decision dated June 18, 2015 was not correct, based on additional compensation benefits for the Veteran's dependent spouse, pursuant to VA's Compensation Rate Table.


CONCLUSION OF LAW

Effective November 1, 2009, but no earlier, compensation benefits paid by VA at the 40 percent rate for the Veteran and his dependent spouse was not correct, pursuant to VA's Compensation Rate Table, and the criteria for additional compensation benefits have been met.  38 U.S.C. §§ 1115, 5110, 5111(a) (West 2012); 38 C.F.R. §§ 3.3, 3.4, 3.31, 3.204, 3.217, 3.400, 3.401 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  

Although this claim was originally characterized by the AOJ as whether the amount of past due benefits Veteran received from the rating decision dated June 18, 2015 of $29, 282.85 was correct, such essentially includes the issue of the correctness of the effective date the Veteran should be granted for dependency benefits for his spouse, and the Board has recharacterized the issue slightly to reflect such.  Specifically, the Veteran's representative, in August 2017 argument, stated, in part, VA failed to correctly pay the Veteran as a married veteran.  Moreover, the calculations at issue, beginning on November 1, 2009, the date of the first payment regarding service connection for PTSD, reflect VA found the Veteran was entitled to a monthly payment of $541.00, the single rate for a combined rating of 40 percent; however, the Veteran's representative contends, as in calculations provided with the May 2017 substantive appeal, that the Veteran was entitled to a monthly rate of $601, the rate for a veteran with spouse only for a combined rating of 40 percent.  See Compensation Rate Tables, https://www.benefits.va.gov/COMPENSATION/resources_comp0108.asp.

Veterans who have service-connected disabilities rated as 30 percent disabling and higher may be entitled to additional compensation for dependents.  38 U.S.C. § 1115 (West 2012); 38 C.F.R. § 3.4 (b)(2) (2017).  When determining the effective date for an award of additional compensation for dependents, the effective date will be the last of the following dates:  (1) the date of claim; (2) the date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within a year of notification of such rating action; or (4) date of commencement of the service member's award.  38 C.F.R. § 3.401 (b) (2017).

The "date of claim" for additional compensation for dependents is the date of the Veteran's marriage or birth/adoption of a child, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within a year of notification of such rating action.  38 U.S.C. § 5110 (West 2012); 38 C.F.R. § 3.401.  The earliest date that an additional award of compensation for dependents can occur is the first day of the calendar month following the month in which the award became effective.  38 C.F.R. § 3.31 (2017).

In Sharp v. Shinseki, 23 Vet. App. 267, 276 (2009), the Court held that the effective date for additional compensation for dependents shall be the same date as the rating decision giving rise to such entitlement, irrespective of any previous grant of section 1115 benefits, if proof of dependents is submitted within one year of notice of the rating action.  While the Court held that there can be "multiple rating decisions that establish entitlement to additional dependency compensation," the Court still required that proof of dependent status be submitted within one year of notice of rating action.  Id.  Dependent compensation benefits were ultimately awarded to the appellant in Sharp on the effective date of the applicable rating increase.

VA will accept, for purposes of determining entitlement to benefits under laws administered by VA, the statement of a claimant as proof of marriage, dissolution of a marriage, birth of a child, or death of a dependent, provided that the statement contains: the date (month and year) and place of the event; the full name and relationship of the other person to the claimant; and the social security number of the other person.  38 U.S.C. § 5124 (West 2012); 38 C.F.R. § 3.204 (2017).

A June 18, 2015 rating decision, granted service connection for PTSD, resulting in a combined disability rating of 40 percent, effective October 30, 2009.  As such, the Veteran was eligible for additional compensation based on any dependents as of that date.  September 2015 correspondence to the Veteran notified him of the June 18, 2015 rating decision and noted he was being paid as a veteran with one dependent and further stated that his payment included an additional amount for his spouse.  Thereafter, December 2015 correspondence notified the Veteran that he was being paid as a single veteran with no dependents and that the September 2015 notification letter incorrectly informed him that that his monthly payment would include an additional amount for his spouse.  The December 2015 correspondence to the Veteran stated that his spouse could not be added as the information on file was over eight years old.

In December 2015, the Veteran submitted a VA Form 21-686c, Declaration of Status of Dependents, in which he identified his wife by name and social security number and listed the place and date of their marriage.  

The Court in Sharp noted that there is no freestanding claim for dependency benefits; rather, the effective date for additional compensation for dependents shall be the same as the date of the rating decision giving rise to such entitlement.  Sharp, 23 Vet. App. at 276.  The Court held there could be multiple rating decisions establishing entitlement to additional dependency compensation and all that is required is that the proof of dependents be submitted within one year of the notice of rating action.  Id.  When discussing its reasoning, in Sharp, the Court noted that it was mindful of the role of finality in decisions regarding additional compensation for benefits but added that the status of dependents can be ever changing.  Id.   

The Board finds that the Court's holding in Sharp is applicable to this case.  As the Board has already discussed, proof of dependent status was received within one year of the issuance of the June 15, 2015 rating decision, which established initial eligibility to compensation for dependents, as it provided for a combined disability rating of 40 percent, effective October 30, 2009.  Thus, an effective date for dependent compensation can be established based on the June 18, 2015 rating decision.  As noted above, the earliest date that an additional award of compensation for dependents can occur is the first day of the calendar month following the month in which the award became effective.  38 C.F.R. § 3.31.  Accordingly, an effective date of November 1, 2009, but no earlier, as to dependency benefits for the Veteran's spouse is warranted.  This date is consistent with the RO's determination.

As to the correct amount payable from November 1, 2009, as noted above, the Veteran's representative has argued that compensation at a 40 percent rating was payable to the Veteran and his dependent spouse at $601 per month, and not the $541 rate assigned by the RO.  The Board's review of the Compensation Rate Table effective December 1, 2008 reflects that a 40 percent rating was payable for a Veteran and his dependent spouse at the rate of $601 per month.  Hence, from November 1, 2009, the Veteran was due compensation at the rate of $601 per month as contended by the Veteran's representative.  The Board's review of the Compensation Rate Table effective December 1, 2009 reflects that a 40 percent rating was payable for a Veteran and his dependent spouse at the rate of $601 per month.  Effective December 1, 2011, a 40 percent rating was payable for a Veteran and his dependent spouse at the rate of $622 per month.  Effective December 1, 2012, a 40 percent rating was payable for a Veteran and his dependent spouse at the rate of $631 per month.  For the month of December 1, 2013, a 40 percent rating was payable for a Veteran and his dependent spouse at the rate of $641.28 per month.  Effective January 1, 2014, a 40 percent rating was payable for a Veteran and his dependent spouse at the rate of $640.54 per month.  Effective December 1, 2014 and December 1, 2015, a 40 percent rating was payable for a Veteran and his dependent spouse at the rate of $651.36 per month.  Effective December 1, 2016, a 40 percent rating was payable for a Veteran and his dependent spouse at the rate of $654.12 per month.  The record does not reflect that the RO recognized the correct foregoing amounts as due per month for the Veteran and his dependent spouse at the 40 percent rate.

In view of the foregoing, the Board finds that the amount of past due benefits the Veteran received from the rating decision dated June 18, 2015 was not correct, based on additional compensation benefits for the Veteran's dependent spouse, as outlined above.



ORDER

Effective November 1, 2009, but no earlier, compensation benefits payable for a 40 percent rating for the Veteran and his dependent spouse, was at the rate of $601 per month, effective December 1, 2009 at the rate of $601 per month, effective December 1, 2011 at the rate of $622 per month, effective December 1, 2012 at the rate of $631 per month, for the month of December 1, 2013 at the rate of $641.28 per month, effective January 1, 2014 at the rate of $640.54 per month, effective December 1, 2014 and December 1, 2015 at the rate of $651.36 per month, and effective December 1, 2016 at the rate of $654.12 per month; the appeal is granted.


REMAND

As noted above, the Board finds that the issue of entitlement to a TDIU prior to August 24, 2016 has been raised as part of the Veteran's claim for entitlement to an initial evaluation in excess of 30 percent for PTSD prior to August 24, 2016.  See Rice v. Shinseki, supra.  However, to date, the Veteran has not been provided with the Veterans Claims Assistance Act of 2000 (VCAA) notice requirements for a TDIU claim.  Therefore, on remand, the AOJ should send the Veteran proper notice, afford him the opportunity to file a formal claim for TDIU, and then adjudicate this matter in the first instance to avoid any prejudice to him.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Furthermore, any development deemed necessary by the AOJ regarding entitlement to a TDIU prior to August 24, 2016 may have an impact on the complete picture of the Veteran's service-connected PTSD prior to August 24, 2016 and its effect on his employability as it pertains to extraschedular consideration.  See Brambley v. Principi, 17 Vet. App. 20, 24 (2003).  Thus, the issue of entitlement to an initial evaluation in excess of 30 percent for PTSD prior to August 24, 2016 will also be remanded.


Accordingly, the case is REMANDED for the following actions:

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

1.  Provide the Veteran with appropriate notice regarding the TDIU claim and request that the Veteran complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and VA Form 21-4192, Request for Employment Information In Connection With Claim for Disability Benefits.

2.  Thereafter, after undertaking any other development deemed appropriate, readjudicate entitlement to an initial evaluation in excess of 30 percent for PTSD prior to August 24, 2016 and adjudicate entitlement to a TDIU prior to August 24, 2016, with consideration of whether the Veteran's TDIU claim should be referred to the Director of VA Compensation Service for extraschedular consideration.  If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

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 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. §§ 5109B, 7112 (West 2012).




______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs