Citation Nr: 18156159 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 10-21 250 DATE: December 7, 2018 ORDER Entitlement to a rating in excess of 0 percent for a left elbow scar is denied. Entitlement to an earlier effective date of May 20, 1998, but not earlier, for service connection for PTSD is granted. REMAND Entitlement to an increased initial rating for posttraumatic distress disorder (PTSD) is remanded. Entitlement to a total rating due to individual unemployability by reason of service-connected disability prior to February 19, 2009, is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s service-connection left elbow scar was well healed, nonpainful, stable, 10 centimeters in length, and did not limit the Veteran’s functional range of motion. 2. The grant of service connection for PTSD stems from a May 20, 1998, claim to reopen a previous final denial of service connection for PTSD, which was reopened in an April 1999 deferred rating decision. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 0 percent for a left elbow scar have not been met. 38 U.S.C. § 1155, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b), 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805. 2. The criteria for entitlement to an earlier effective date of May 20, 1998, but not earlier, for service connection for PTSD have been met. 38 U.S.C. § 5107, 5110; 38 C.F.R. § 3.816. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1961 to August 1965. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida and a November 2014 rating decision of the VA RO in Nashville, Tennessee. An October 2017 rating decision assigned a TDIU rating, effective February 19, 2009. However, as the Veteran has now established an earlier effective date for service connection for PTSD, the claim for PTSD prior to February 19, 2009, remains before the Board. Increased Rating Disability ratings are based on VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for a specific percentage rating to be assigned for that disability. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C. § 1155. A rating is assigned by comparing the extent to which a Veteran’s service-connected disability impairs the ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran’s symptomatology, with the criteria for the percentage ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. 38 C.F.R. § 3.159. Competent lay evidence may establish the presence of observable symptomatology and may also be sufficient to support a claim of service connection. Layno v. Brown, 6 Vet. App. 465 (1994). The Board must determine the probative weight to be assigned among evidence in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). If all the evidence is in relative equipoise, reasonable doubt shall be resolved in the Veteran’s favor, and the claim should be granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an increased disability rating in excess of 0 percent for residual laceration scar, left elbow. The Veteran’s left scar disability is rated 0 percent under Diagnostic Code 7802. Scars, not of the head, face, or neck that are superficial and nonlinear in an area or areas of 144 square inches (929 square centimeters) or greater warrant a 10 percent rating. If multiple qualifying scars are present, a separate rating is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity. 38 C.F.R. § 4.118, Diagnostic Code 7802. One or two scars that are unstable or painful warrant a 10 percent rating; three or four scars that are unstable or painful warrant a 20 percent rating; and five or more scars that are unstable or painful warrant a 30 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7804. Other scars, including linear scars, and other effects of scars rated under Diagnostic Codes 7802 or 7804 require the rating of any disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. In every instance where the schedule does not provide a zero percent evaluation for a Diagnostic Code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. An October 2014 VA examination recorded the left upper extremity scar to be a residual 10 centimeter linear scar, flat and barely negligible, in the area proximal to the left elbow which result in no limitation in range of motion. The examiner noted that the scar was well-healed, flat, barely negligible, nonpainful, and nontender. The Veteran had no limitations in the range of motion, or dexterity of left upper extremity that prevented him from gaining a physical or sedentary employment. To support the claim for an increased rating, in April 2016, the Veteran submitted a written statement from October 2015 in which he stated that the scar caused him to have some limitation when he was working as a stockbroker. He stated that he had great difficulty in lifting heavy objects and always had to have a coworker assist in lifting anything. The Veteran also mentioned that he was in immense pain all day as long as he had to write and type constantly. The Board notes that the record shows that the Veteran left his job as a stockbroker in 1989. In addition, the objective evidence of the examination found that scar to be well-healed and non-tender. The Board finds that the objective evidence from the VA examination is more persuasive because of the training of the examiner. The examiner found no pain functional limitation due to the scar. The examiner also measured the scar, which was not of sufficient area to warrant a compensable rating. Accordingly, the Board finds the preponderance of the evidence is against the assignment of a higher rating since the scar is linear and no lay or medical evidence indicates that the scar is painful, unstable, or causes functional limitation. As the preponderance of the evidence shows that the symptoms more nearly approximate the criteria for a 0 percent rating, the assignment of any higher rating is not warranted. Therefore, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to an effective date earlier than February 19, 2009, for service connection for PTSD. Except as otherwise provided, the effective date of a rating and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a 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. RO decisions become final one year from the date of the letter accompanying the decision in the absence of clear and unmistakable error, and are not subject to revision except on receipt of new and material evidence. 38 U.S.C. §§ 5108, 5109A(a), 5110(a); 38 C.F.R. § 3.156(b). After a decision establishing an effective date becomes final, there is no procedure for a freestanding claim for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006). A decision assigning an effective date for a disability becomes final when the decision is not appealed, and an appellant can only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. However, because the proper effective date for an award based on a claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In the case at hand, a January 1991 rating decision denied service connection for PTSD because an in-service stressor was not established. Specifically, the RO noted that although the condition has been diagnosed, there was no showing of a recognizable stressor or specific enough information concerning a stressor that could be verified. Additionally, there was no evidence to show that PTSD was incurred in-service and the Veteran’s service medical records were negative for any psychiatric disability. The Veteran did not appeal the January 1991 rating decision and the rating decision became final in January 1992. In May 1998, the Veteran submitted a new claim for service connection for PTSD. VA issued a September 1998 letter to notify the Veteran that he would have to submit new and material evidence in order to reopen the claim for service connection for PTSD which had been previously denied. The Veteran was informed that until VA received new and material evidence, no further action would be taken on the claim. However, the September 1998 notice letter was subsequently returned as undeliverable because the Veteran changed addresses and did not notify the VA of the address change prior to the letter being mailed. Under the presumption of regularity in the administrative process, it is presumed that a claimant received proper notice by VA. Boyd v. McDonald, 27 Vet. App. 63 (2014) (under the presumption of regularity, if notice is sent to the claimant’s last known address of record, it will be presumed that VA properly discharged its official duties); United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926). This presumption may only be rebutted with clear evidence to the contrary. Schoolman v. West, 12 Vet. App. 307 (1999). That evidence includes clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. The mere assertion that the notice was not received does not by itself constitute clear evidence rebutting the presumption. However, the presumption of regularity may be rebutted where there is evidence that (1) VA used an incorrect address on the mailing in question or (2) the mailing was returned as undeliverable and there were other possible and plausible addresses available to VA at the time. Boyd v. McDonald, 27 Vet. App. 63 (2014). Here, the returned record shows that the notice letter was mailed to the Veteran’s last known address of record, and was placed in the file as returned mail in March 1999. The Veteran contacted VA in April 1999 and requested a copy of the most recent rating decision. In response to that request, VA personnel completed a deferred rating decision in April 1999, noting that the claim was reopened and conducting development on the claim. Then, in May 1999, a letter of record shows that the requested information was sent to the Veteran, but does not state what information was mailed to the Veteran. The Board notes that the Veteran requested a rating decision and the September 1998 letter was in letter format and was not a rating decision. The Veteran notified VA of an updated mailing address in May 1999. In December 1999, VA requested information from the United States Armed Services Center for Research of Unit Records. A November 2000 handwritten letter from the Veteran is partially illegible, but the Veteran states that he had moved several times, provided an updated mailing address, and requested a copy of a letter of denial that he had never received relating to the claim for service connection for PTSD. A November 2000 letter notes that in response to a request under the Privacy Act, the requested information was being enclosed. The next document in the record is a February 19, 2009, communication from the Veteran requested service connection for PTSD. The Board has analyzed the procedural history in this claim and finds that service connection for PTSD was denied in January 1991 and that decision was not appealed. Subsequently, the Veteran filed a claim to reopen the claim for service connection for PTSD, which was received by VA on May 20, 1998. A letter was sent in September 1998 denied the claim to reopen as no new and material evidence had been received. That letter was eventually sent to the Veteran again in November 2000. However, an April 1999 deferred rating decision, after the September 1998 denial, noted that the claim was reopened as new and material evidence had been received and began conducting development on the claim. That claim was not extinguished by the remailing of the September 1998 letter. However, after the requested development was completed and information received from the service department, no VA decision was issued. Therefore, that reopened claim remained open at the time of receipt of the February 19, 2009, request to reopen. Therefore, the claim for service-connection for PTSD had been pending from May 20, 1998, the date of filing of a claim to reopen the claim for service connection for PTSD. The Board finds that May 20, 1998, is the appropriate effective date as that was the date of the claim that remained pending to the time that service connection was eventually established and is the earliest effective date that can be assigned. The Veteran contends that he is entitled to a June 1, 1990, effective date for service connection for his PTSD because his service personnel records served as a partial basis for the eventual grant of service connection for PTSD. The Veteran argues that where a grant of service connection is made, at least in part due to service records not associated with the file at the time of the prior denial, the provisions of 38 C.F.R. § 3.156(c) allow for the Veteran to be awarded service connection back to the date of the original claim, notwithstanding the provisions of 38 C.F.R. § 3.156(a) regarding new and material evidence. Virgil v. Peake, 22 Vet. App. 63 (2008). Here, the original claim was denied in January 1991 because the Veteran’s service separation form was silent as to any recognizable stressor of PTSD or specific enough information concerning a stressor that could be verified. The Veteran’s claim for service connection for PTSD was granted, effective in February 2009, by a January 2014 Board decision because the Veteran’s claimed in-service stressor was corroborated with excerpts from a book entitled, “Asia from Above,” and because the Veteran’s service separation documents confirmed his service with the 67th Reconnaissance Squadron as a still photographer. The Veteran claims that his service separation documents were not associated with the claims file during the January 1991 denial of service connection for PTSD. As a result of the document not being associated with the claims file prior to the January 1991 denial and because it was used as a basis for the grant of service connection, the Veteran claims that he is entitled to an effective date of the original claim. However, the Veteran’s military personnel record that confirmed the Veteran’s served in the 67th Reconnaissance Squadron as a still photographer, was in the claims file when the January 1991 rating decision denied service connection for PTSD. A 1999 deferred decision incorrectly states that the Veteran’s personnel record, AF-7, was new and material evidence to reopen the claim, which implies it was not a part of the claims file prior to the January 1991 denial of service connection. The Veteran used that April 1999 deferred rating decision as a basis for his contention that he is entitled to an earlier effective date, and because the claim was reopened, even if erroneously so, the Board agrees with the Veteran’s contention that the claim remained pending at that time. However, a review of the record shows that finding in the April 1999 deferred rating decision was incorrect as the same personnel record, the Veteran’s AF-7, was in the claims file in September 1990 prior to the January 1991 denial. Therefore, because that AF-7 was of record at the time of the January 1991 denial, a duplicate copy placed in the record later does not trigger the procedures of 38 C.F.R. § 3.156(c). The Board notes that the new and material evidence that allowed the PTSD claim to be granted in the February 2009 rating decision was excerpts from a book entitled “Asia from Above” that corroborated the Veteran’s lay statements. Those book excerpts do not constitute service records not associated with the file at the time of the prior denial under 38 C.F.R. § 3.156(c). Therefore, the Veteran’s contention that he is entitled to a June 1, 1990 effective date for the grant of service connection for PTSD because it was made at least in part due to service records not associated with the file prior to the January 1991 denial is without merit. The service records in question were associated with the claims file when the Veteran’s original claim for PTSD was denied. Therefore, the procedures of 38 C.F.R. § 3.156(c) are inapplicable to the matter at hand. Accordingly, the Board finds that the evidence supports the assignment of an effective date of May 20, 1998, for service connection for PTSD. However, the Board finds that the preponderance of the evidence is against the assignment of any earlier effective date, and the claim for any earlier effective date must be denied. REASONS FOR REMAND 3. Entitlement to an increased initial rating for PTSD is remanded. 4. Entitlement to TDIU prior to February 19, 2009, is remanded. An earlier effective date for service connection for PTSD has been assigned by this decision. However, the RO has not yet assigned a rating for the period prior to February 19, 2009. Therefore, the issue must be remanded for the RO to assign a rating prior to February 19, 2009. In addition, the Board notes that the most recent examination is over four years old. Therefore, a more current examination should be obtained. The claims are remanded for the following action: 1. Schedule the Veteran for a VA psychiatric examination with a psychiatrist or psychologist. The examiner must review the claims file and should note that review in the report. The examiner should describe the levels of occupation and social impairment due to the psychiatric disability and should describe the type, frequency, and severity of symptoms resulting in those levels of impairment. The examiner should opine whether total occupational impairment is shown due to PTSD. The examiner should opine whether total social impairment is shown due to PTSD. The examiner should also conduct a historical review the evidence of record and should opine as to when the Veteran first became unable to secure or follow a substantially gainful occupation due to the service-connected disabilities, to include PTSD. The examiner should explain the basis for that finding. 2. Assign a rating for PTSD prior to February 19, 2009, back to May 20, 1998. Also, adjudicate the claim for TDIU prior to February 19, 2009. If any decision is adverse to the Veteran, issue a supplemental statement of the case. Allow the appropriate time for response, and then return the claim to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Law Clerk