Citation Nr: 18157620 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 15-04 280 DATE: December 13, 2018 REMANDED 1. Entitlement to an effective date prior to March 14, 2011, for the assignment of a total rating for posttraumatic stress disorder (PTSD), is remanded. 2. Entitlement to an effective date prior to March 14, 2011, for the award of special monthly compensation (SMC) at the housebound rate, is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from December 1964 to September 1968. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision, which increased the rating for PTSD from 50 to 100 percent, and granted SMC at the housebound rate, each effective November 5, 2013. The procedural history of this appeal is lengthy, and will be described in greater detail below. Notably, a June 2016 Board decision awarded an earlier effective date of March 14, 2011, for the 100 percent rating for PTSD and for the award of SMC at the housebound rate. The Veteran appealed the Board’s June 2016 decision to the U.S. Court of Appeals for Veterans Claims (CAVC). Pursuant to a March 2018 Memorandum Decision, the CAVC vacated the Board’s decision and remanded the matters to the Board for additional action. The issue of entitlement to an effective date prior to March 14, 2011, for the award of a 100 percent rating for PTSD was remanded “for the Board to consider whether there was an outstanding claim for a higher PTSD rating predating March 14, 2011,” and he matter of an effective date prior to March 14, 2011, for the award of SMC at the housebound rate was remanded as inextricably intertwined. 1. Entitlement to an effective date prior to March 14, 2011, for the award of a total rating for PTSD. The Board has considered the evidence of record, including specifically the procedural history outlined by the CAVC in the 2018 Memorandum Decision, and finds that an outstanding claim for increase in the rating for PTSD was pending from August 31, 2005 to March 14, 2011. On September 2, 2003, VA received the Veteran’s claim for service connection for PTSD. [His claim was also accepted as a claim for nonservice-connected pension.] A July 2005 rating decision granted service connection for PTSD, rated 30 percent effective September 2, 2003, the date of his original claim for service connection. A July 26, 2005 letter notified the Veteran of this decision and of his appellate rights. He did not submit an NOD with that rating decision (or explicitly disagree with the rating decision or express a desire for appellate review) within a year following, and also did not submit new and material evidence within a year following. Accordingly, it became final. 38 U.S.C. § 7105. On August 31, 2005, VA received the Veteran’s claim for a TDIU rating. He wrote, “I can not work because of my service connected conditions.” A December 2005 rating decision denied him entitlement to a TDIU rating, finding that his sole service-connected disability (PTSD rated 30 percent) did not result in his being unemployable. He perfected an appeal of this decision to the Board. A January 2008 rating decision increased the rating for the Veteran’s PTSD from 30 to 50 percent, effective April 13, 2007. He did not submit an NOD with that rating decision, or submit new and material evidence within a year following. In May 2010, the Board denied the Veteran entitlement to a TDIU rating. The Veteran appealed that decision to the CAVC, resulting in a September 2010 Joint Motion for Remand (JMR) by the parties, which directed the Board to provide additional reasons and bases as to why TDIU on an extraschedular basis was not considered. In a report of private psychiatric evaluation dated February 28, 2011, the examiner opined that the Veteran’s PTSD should be rated 100 percent, and opined that his PTSD prevents him from securing a substantially gainful occupation. He also opined that the Veteran’s inability to work due to his PTSD dates back to 2003. He explained that he relied on the Veteran’s report that he earned less than $5,000 per year in 2003 and 2004. He also noted marijuana abuse and a history of alcohol use, but did not discuss their impact on the Veteran’s ability to engage in substantially gainful employment. In April 2011, the Board determined that the criteria for referral for extraschedular consideration were met, and remanded the claim for such referral to the Director of Compensation and Pension Service. Meanwhile, a May 2011 rating decision noted that CAD had been recently added to the list of diseases presumed to be the result of exposure to herbicides, and granted service connection for CAD, rated 60 percent, effective September 2, 2003 (the date he was originally granted pension benefits). The May 2011 rating decision also granted a TDIU rating effective September 2, 2003; the decision explained that the Veteran was not able to obtain or maintain employment as a result of his service-connected CAD and PTSD (emphasis added). In September 2011, the Veteran’s attorney submitted an NOD with the May 2011 rating decision. He argued that the Veteran’s TDIU should be based solely upon his PTSD, and that if TDIU was awarded based solely on PTSD, the Veteran would be eligible for SMC. He asked that the referral to the Director of Compensation and Pension be completed. In June 2012, the VA Director of Compensation determined that the Veteran’s PTSD has not prevented him from engaging in substantially gainful employment at any time. He found that the evidence does not demonstrate that the Veteran’s PTSD alone prevented him from engaging in substantially gainful employment. He acknowledged the February 2011 private provider’s opinion, but found that it was based on the Veteran’s report of earning $5,000 in 2003 and 2004, when in fact evidence showed he earned more than $12,000 each year. It was further noted that the private examiner did not address the Veteran’s frequent and continuous use of marijuana, and the effect this behavior may have had on past employment or ability to engage in substantially gainful occupation. Ultimately, he found that entitlement to TDIU on an extraschedular based solely on PTSD was not shown. An April 2013 rating decision denied entitlement to SMC. The Veteran timely appealed that decision in October 2013. [SMC was subsequently granted, and this matter was not certified to the Board.] In November 2013, VA received an addendum opinion (dated November 5, 2013) from the private February 2011 provider, indicating that the Veteran’s “level of disability dates at least to 2004.” The rationale again was based on the Veteran’s report of earning less than $5,000 in 2003 and 2004, and did not address the impact of his marijuana use. On February 2014 VA (fee basis) PTSD examination, the examiner opined that the Veteran’s PTSD manifests in total occupational and social impairment. An April 2014 rating decision increased the PTSD rating from 50 to 100 percent effective November 5, 2013, the date of the private psychiatric addendum opinion, and granted SMC, effective from the same date. A June 2016 Board decision awarded an earlier effective date of March 14, 2011, for the 100 percent rating for PTSD and for award of SMC. The Board explained that March 14, 2011, was the date VA received the February 2011 private psychiatric examination, which met the requirement of an informal claim for increase under the regulations in effect at that time. The Board found there was no basis for an award of SMC prior to March 14, 2011. The Veteran appealed the June 2018 Board decision to the CAVC, resulting in the March 2018 Memorandum Decision. As noted above, based on review of the evidence and the procedural record, the Board finds that a claim for increase in the rating for PTSD was pending from August 31, 2005 to March 14, 2011. The Board finds that the August 31, 2005 TDIU application may be considered an informal claim for increase for PTSD, particularly considering the September 2005 VA notification letter that explained that a claim for TDIU “consists of a claim for an increase in all of your service connected disabilities.” Although the claim for increase for PTSD was separately adjudicated from the TDIU claim (in a January 2008 rating decision), they should have been treated as a single claim before the Board in 2010. Following the Board’s June 2016 decision, which assigned a total schedular rating for PTSD effective March 14, 2011, and the March 2018 Memorandum Decision, the Veteran contends that he is entitled to a total schedular rating for his PTSD throughout the period of the claim for increase. Accordingly, what remains for the Board to address upon determining that a claim for increase for PTSD was pending since August 31, 2005, is whether the Veteran’s PTSD is factually shown to alone have rendered him unemployable throughout, or during any portion of, that period prior to March 14, 2011. That is a medical question that requires medical expertise, particularly in light of his separate, service-connected heart disability. In support of his claim, the Veteran submitted a February 2011 private medical opinion (with November 2013 addendum) that includes a retrospective opinion regarding the severity of his PTSD. VA has not obtained a retrospective opinion in the matter. However, the VA Director of Compensation has cited to inaccuracies and omissions in the private retrospective opinion that render it inadequate (including substantial discrepancies in reported versus actual earnings in 2003 and 2004 and the failure to address the frequent and continuous use of marijuana, and the effects this behavior may have had on past employment or ability to engage in substantially gainful occupation). Consequently, the record does not include an adequate opinion in this matter. [Notably, the November 2007 (in the middle of the period on appeal) VA PTSD examination report does not address the impact of the Veteran’s PTSD on his ability to work.] A remand to obtain an adequate retrospective medical advisory opinion regarding the effect of the Veteran’s service-connected PTSD (alone) would have been expected to have on his occupational functioning from 2005 to 2011 is necessary. 2. Entitlement to an effective date prior to March 14, 2011, for the award of SMC at the housebound rate. As noted by the CAVC, the claim for an effective date prior to March 14, 2011, for the award of SMC at the housebound rate is inextricably intertwined with the claim for to an effective date prior to March 14, 2011, for assignment of a total schedular rating for PTSD. Accordingly, this issue must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following: 1. Arrange for the Veteran’s record to be forwarded to a VA psychiatrist or psychologist for review and a retrospective opinion regarding the impact the Veteran’s service-connected psychiatric disability would have been expected to have on his occupational functioning during the period from 2005 until March 14, 2011. On review of the record, the consulting provider should provide responses to the following: (a) Describe the impact the Veteran’s PTSD, alone, had on his ability to participate in substantially gainful employment during the period from 2005 to March 4, 2011. Is there any support in the evidentiary record (apart from the February 2011 private examination report, with November 2013 addendum) that prior to March 14, 2011, the PTSD rendered him incapable of participating in employment consistent with his education and experience? If there is such evidence, identify it. (b) Review the February 2011 private provider’s retrospective opinion (with November 2013 addendum) and express agreement or disagreement with the conclusion reached by the examiner regarding the impact of the Veteran’s PTSD on his employability. including rationale for the agreement or disagreement (that cites to supporting factual data). The consulting psychiatrist/psychologist should discuss: - A July 1983 VA psychiatric examination report which notes that the Veteran was already unemployed (due to factory closure which ended a 4-year period of employment) and living in an isolated location many years before his PTSD was diagnosed, and - A March 2006 VA social work record which notes the Veteran’s explanation that “he simply chooses to live more simply than most” when discussing his living situation. All opinions must include rationale (with citation to factual data and medical literature as deemed appropriate). GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel