Citation Nr: 18150032 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 08-32 288 DATE: November 14, 2018 ISSUES 1. Entitlement to an effective date earlier than December 11, 2006, for the grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial disability rating in excess of 50 percent for the period prior to February 1, 2014, for PTSD. 3. Entitlement to a total rating based on individual unemployability (TDIU) prior to February 1, 2014. ORDER An effective date of December 15, 2003, but no earlier, for entitlement to service connection for PTSD is granted. REMANDED Entitlement to an initial disability rating in excess of 50 percent for the period prior to February 1, 2014, for PTSD is remanded. Entitlement to a TDIU prior to February 1, 2014, is remanded. FINDINGS OF FACT 1. On December 15, 2003, the RO received the Veteran’s original claim of entitlement to service connection for PTSD and denied the claim in a final rating decision issued in May 2004. 2. On December 11, 2006, the RO received the Veteran’s claim to reopen the previously denied claim for service connection for PTSD. 3. A new service personnel record was received in January 2007, that was available but not of record at the time of the May 2004 decision, that showed that the Veteran was awarded the Bronze Star Medal with the 196th Aviation Company. 4. The claim for service connection for PTSD was reconsidered and granted in a February 2008 with an effective date of December 11, 2006. 5. Resolving reasonable doubt in favor of the Veteran, the Board finds that the ultimate grant of service connection in February 2008 relied in part upon the new service record received in January 2007; therefore, entitlement to service connection for PTSD arose on December 15, 2003. CONCLUSION OF LAW The criteria for an effective date of December 15, 2003, but no earlier, for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.159, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from November 1968 to October 1971, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2008 rating decision by the Regional Office (RO), which granted service connection for PTSD and assigned a 30 percent disability rating effective from December 11, 2006, the receipt date for the claim to reopen. The Veteran and his spouse provided testimony at an August 2011 hearing held before the undersigned. A copy of the transcript is associated with the record. In November 2011 the Board remanded the claim to the agency of original jurisdiction (AOJ). The Board subsequently denied the claim in September 2013. The Veteran appealed the Board’s September 2013 determination to the Court of Appeals for Veteran’s Claims, hereinafter “Court.” In October 2014 the Court issued a Memorandum Decision setting aside, “that part of the September 24, 2013, Board decision that denied entitlement to staged ratings for PTSD” and remanded the matter to the Board for further adjudication consistent with the Memorandum Decision. When this case before the Board in May 2015, a 50 percent disability evaluation was granted for PTSD for the period prior to February 1, 2014, a 70 percent disability evaluation for PTSD was granted for the period beginning February 1, 2014, and entitlement to TDIU was granted effective February 1, 2014. The Veteran appealed the Board’s May 2015 determination to the Court as to the issues of entitlement to an initial disability rating in excess of 50 percent for the period prior to February 1, 2014, for PTSD, and entitlement to a TDIU prior to February 1, 2014. In January 2016 the Court ordered that the motion for partial remand was granted and remanded the matter to the Board for further adjudication. When this case was most recently before the Board in June 2016, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. VA’s Duty to Notify and Assist The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Given the favorable decision is a full grant of the issue addressed, further explaining how VA has fulfilled the duties to notify and assist is unnecessary. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Earlier Effective Date Generally, 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. § 5110 (a); 38 C.F.R. § 3.400. Submission of new and material evidence within a year of a rating decision delays finality of the rating decision until such time as readjudication of the claim with consideration of that evidence occurs and that decision becomes final. 38 C.F.R. § 3.156(b). Here, the Veteran did not appeal the May 2004 rating decision that denied service connection for PTSD, and no new and material evidence was received within one year of the decision; therefore, the decision became final. Nevertheless, if the new and material evidence received at any time after the original denial consists of service department records, and those records are the basis for the subsequent grant of service connection, then the effective date for the grant will be the date of the original claim. 38 C.F.R. § 3.156 (c). Service department records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(1). Where a claim has been denied due to lack of evidence of an in-service injury, but later is granted based all or in part on subsequently acquired service records establishing the in-service injury and a nexus between the in-service injury and a current disability, the Veteran is entitled to a retroactive evaluation of the disability to assess the proper effective date. 38 C.F.R. § 3.156 (c) (2008); Vigil v. West, 22 Vet. App. 63, 66-67 (2008). In this sense the claim is not just re-opened, it is reconsidered, and the date VA received the previously decided claim serves as the date of the claim, and the earliest date for which benefits may be granted. Id. In addition, 38 C.F.R. § 3.156 (c)(2) states, in part, “paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other source.” Finally, 38 C.F.R. § 3.156 (c)(3) states that “[a]n award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the previously decided claim.” The Veteran initially submitted a claim for service connection for PTSD on December 15, 2003. A May 2004 rating decision denied service connection on the basis that the evidence did not show a confirmed diagnosis of PTSD and the available evidence was insufficient to confirm that the Veteran actually engaged in combat or was a prisoner of war. The Veteran was notified of the denial in a May 2004 notice letter, but he did not appeal the denial. The May 2004 rating decision denying PTSD is final. On December 11, 2006, the Veteran submitted a petition to reopen his claim for PTSD. A February 2008 rating decision granted service connection for PTSD effective December 11, 2006, the date of the petition to reopen. The Veteran argued that the effective date should be the date of the original December 2003 claim because the ultimate grant of service connection for PTSD relied in part upon a new service record received in January 2007 that showed that he was awarded the Bronze Star Medal with the 196th Aviation Company. Resolving reasonable doubt in favor of the Veteran, the Board finds that the ultimate grant of service connection in February 2008 relied in part upon the new service record received in January 2007; such record was available but not of record at the time of the May 2004 decision, and the Veteran did not fail to provide sufficient information for VA to identify and obtain the record. To this point, the Board acknowledges that in an October 2015 rating decision, the RO stated that additional military service records that had not been previously associated with the file were received in January 2007 that “help confirm the Veteran's assignment to the 196th Aviation Company (assault helicopter support) and the receipt of a Bronze Star Medal for meritorious achievement in connection with military operations against hostile forces.” It is apparent that the RO relied in part on this newly obtained service records, showing that he actually engaged in combat, in granting the claim of entitlement to service connection for PTSD. Consequently, the February 2008 adjudication of the Veteran’s claim of entitlement to service connection for PTSD is a reconsideration of the May 2004 decision, and the grant of entitlement to service connection for PTSD is retroactive to the original claim for benefits. Therefore, an effective date of December 15, 2003, but no earlier, for the grant of entitlement to service connection for PTSD is granted. REASONS FOR REMAND The Board finds that additional development is necessary before a decision may be rendered regarding the remaining issues on appeal. Considering the above grant of an earlier effective date, the Board finds that a retrospective opinion assessing the severity of the PTSD would be helpful in resolving the issue of entitlement to a higher initial disability rating prior to February 1, 2014. See Chotta v. Peake, 22 Vet. App. 80, 84-85 (2008); Vigil v. Peake, 22 Vet. App. 63, 67 (2008). The Veteran also contends he is entitled to TDIU prior to February 1, 2014. Social Security Administration records and records provided by the Veteran reflect that he retired in February 2014 from his job with the state department of transportation. In his application for a TDIU, the Veteran indicated that he worked from May 2008 to February 2014 in “office” type work. In a private March 2015 examination, it was noted that the Veteran’s work history included several transfers within a company and that he was able to sustain his employment either by working alone or in the presence of a very limited number of people. The Veteran also reported that he was able to work in relative isolation and/or roles that provided him a greater degree of control. The Veteran’s attorney argues that prior to his retirement in February 2014, the Veteran worked in a protected environment. TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16 (a). The regulation explains that marginal employment shall not be considered “substantially gainful employment.” Marginal employment is defined as employment where a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id.; see also Faust v. West, 13 Vet. App. 342 (2000). Marginal employment may also be found in some cases when earned annual income exceeds the poverty threshold, such as cases where there is employment in a protected environment, such as a family business or sheltered workshop. Id; see also Cantrell v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 537 (U.S. App. Vet. Cl. Apr. 18, 2017). The Board finds that on remand further development should be conducted to determine if the Veteran’s employment was in a protected environment, and thus marginal employment. The matters are REMANDED for the following action: 1. Obtain a retrospective opinion concerning the nature and severity of the Veteran’s PTSD from December 15, 2003, to February 1, 2014. The electronic claims file should be made available to and reviewed by the examiner. An examination of the Veteran should be performed only if deemed necessary by the examiner. All findings should be reported in detail and a complete rationale for any opinion expressed must be included. 2. The AOJ should send the Veteran another VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), and request that he complete and return it, including such information as any accommodations made to him in his prior job and any other information pertaining to whether his employment was in a “protected environment.” 3. The AOJ should, after asking for authorization, send a VA Form 21-4192 (Request for Employment Information in Connection With Claim for Disability Benefits) to all identified employers, and ask that it be completed and returned with information regarding any accommodations that were made for the Veteran’s service-connected disabilities. 4. After the above has been completed, refer the case to the Director of Compensation to make a determination as to whether the Veteran’s employment was in a protected environment. (Continued on the next page)   5. Readjudicate the issues on appeal. If the benefits sought on appeal are not granted in full, furnish to the appellant and his attorney an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The appellant should be afforded the appropriate time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., Counsel