Citation Nr: 18158697 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-31 912 DATE: December 18, 2018 ORDER An effective date of November 27, 2012, for the grant of service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. A February 2006 rating decision denied service connection for PTSD based on the lack of a verified stressor; the Veteran did not appeal or submit new and material evidence within one year. 2. The Veteran submitted a claim to reopen entitlement to service connection PTSD on November 27, 2012; there are no informal or formal claims prior to November 27, 2012. 3. With resolution of doubt in the Veteran’s favor, entitlement to service connection for PTSD arose prior to November 27, 2012. 4. With resolution of doubt in the Veteran’s favor, his service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of November 27, 2012, but no earlier, for the grant of service connection for PTSD have been met. 38 U.S.C. §§ 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.156(b), 3.114, 3.400 (2018). 2. The criteria for TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to November 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2015 and February 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an effective date earlier than September 10, 2015, for the grant of service connection for PTSD Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2018). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). Where a claim is granted after the submission of new and material evidence, the effective date is the later of the date of receipt of the new claim or the date entitlement arose. 38 C.F.R. § 3.400(q)(2). Prior to March 24, 2015, a claim was “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p). An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Because the Veteran submitted his claim before March 2015, the regulations extant prior to March 24, 2015, will be used. With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. History The Veteran initially submitted a claim of entitlement to service connection for PTSD in April 2005. In a VA examination conducted in November 2005, a VA examiner opined that the Veteran had PTSD as a result of combat in service. During the examination, the Veteran reported that he served on the Cambodian borders in the Tainan Province. He indicated that he was mortared a lot while serving as a cook and as a medic. He reported having to take care of the wounded and dead soldiers. In a July 2005 stressor statement, the Veteran reported picking up dead soldiers in the fields and witnessing body parts. He indicated that these stressors occurred in 1967 and 1968. The claim was denied in a February 2006 rating decision because there was insufficient evidence in the Veteran’s military personnel records to corroborate a stressor sufficient to support a diagnosis of PTSD. The Veteran did not appeal the decision or submit new and material evidence within one year and thus the decision was final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran submitted a claim to reopen the previously denied claim on November 27, 2012. On VA examination in March 2013, the examiner opined that the Veteran did not have PTSD because the avoidance and persistent symptoms of increased arousal criteria for the diagnosis of PTSD were not present. VA denied the Veteran’s claim in a May 2013 rating decision. The Veteran appealed that rating decision. In a statement received in April 2014, the Veteran described a new stressor wherein his company was hit by rockets and mortar fire in February 1969 while he was serving dinner. He reported that two of his friends that were medics died. In a November 2014 statement, the Veteran reported that rockets and mortar fire hit a mess hall, killing some of his friends. The RO attempted verification of the Veteran’s reported stressor with the Defense Personnel Records Information Retrieval System (DPRIS). A June 2015 DPRIS response verified the Veteran’s alleged stressor, based on the 1969 Annual Army Medical Service Activities report. Based on this verified stressor, and a subsequent September 2015 VA examination, showing a diagnosis of PTSD, the Veteran’s claim was granted, effective September 10, 2015. Analysis The Board finds that an earlier effective date of November 27, 2012, is warranted for the grant of service connection for PTSD. First, the Board notes that November 27, 2012, is the date of claim. The Veteran had a prior claim of entitlement to service connection for PTSD that was decided in a February 2006 rating decision. As noted above, the Veteran did not appeal this claim or submit new and material evidence within one year of the decision. The decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. No subsequent submission may be construed as an informal or formal claim between the February 2006 rating decision and the November 27, 2012, claim to reopen. Therefore, the earliest possible claim date is November 27, 2012. The next issue is determining the date entitlement arose. The RO assigned an effective date of September 10, 2015, because it found this was the date entitlement to service connection for PTSD arose. The Board has reviewed the evidence of record and notes that it is somewhat in conflict as to this issue. The February 2006 VA examiner diagnosed PTSD related to combat in service. But, as noted by the rating decision, the Veteran’s stressor was not verified. In contrast, a March 2013 VA examiner found that the Veteran did not have PTSD because the avoidance and persistent symptoms of increased arousal criteria were not shown. At the September 2015 VA examination, the examiner diagnosed PTSD. VA counseling records dated back to October 2013 note such a diagnosis. The Veteran’s treating physician from a private treatment provider who had treated the Veteran for “many years” indicated that the Veteran had suffered from PTSD. Similarly, in a March 2014 letter, MM, a Licensed Clinical Social Worker who worked for VA and had treated the Veteran since November 2013, indicated that the Veteran had received treatment for PTSD and substance abuse counseling. The only evidence of record to suggest that the Veteran did not have PTSD is the March 2013 VA examination. The remaining evidence either shows a diagnosis (September 2015 VA examination), or is highly suggestive of such a diagnosis (February 2006 VA examination and treatment records from VA and private sources). The Board will therefore resolve reasonable doubt in the Veteran’s favor and find that entitlement to service connection for PTSD arose prior to November 27, 2012. As discussed above, where a claim is granted after the submission of new and material evidence, the effective date is the later of the date of receipt of the new claim or the date entitlement arose. 38 C.F.R. § 3.400(q)(2). Here, the later date is November 27, 2012, the date of receipt of the new claim. Therefore, the Board finds that an effective date of November 27, 2012, is warranted. In a brief submitted in March 2018, the Veteran’s representative made a series of legal arguments. First, noting that the Veteran’s claim of service connection for PTSD had been initially denied in February 2006, the representative asserted that the 2006 rating decision should be revised to a grant because of the failure to associate records with the Veteran’s claims file under 38 C.F.R. § 3.156(c). Second, the representative asserted that the effective date should be revised to February 3, 2011, one year before the claim to reopen was submitted. First, under 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such records include service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name or 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. 38 C.F.R. § 3.156(c)(1)(i). These regulations do 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 (JSRRC), or from any other official source. 38 C.F.R. § 3.156 (c)(2). In the March 2018 brief, the Veteran’s representative argued that 38 C.F.R. § 3.156(c) should prompt reconsideration of the February 2006 claim. The representative cited to the June 2015 DPRIS report that verified the Veteran’s reported stressor, an attack on a mess hall that resulted in loss of life. The service records cited by the DPRIS report, the 1969 Annual Army Medical Service Activities Report and the U.S. Military Assistance Command, Vietnam chronology for 1969, verified that the Veteran had served as a cook in a unit that sustained what was reported to be a mine explosion resulting in 15 U.S. personnel killed in action, and 26 U.S. personnel wounded in action. The Board notes that these service records existed at the time of the 2006 rating decision and had not been associated with the claims file. However, 38 C.F.R. § 3.156(c)(2) operates to preclude reconsideration of the 2006 rating decision because the Veteran had not provided sufficient information for VA to identify and obtain the records from the respective service department, the JSRRC, or from any other official source. During the November 2005 examination for the Veteran’s first claim of entitlement of service connection for PTSD, the Veteran reported that he served on the Cambodian borders in the Tainan Province. He indicated that he sustained mortar attacks while serving as a cook and as a medic. He reported having to take care of the wounded and dead soldiers. In a July 2005 stressor statement, the Veteran reported picking up dead soldiers and body parts out in the field. He indicated that these stressors occurred in 1967 and 1968. The RO reviewed the Veteran’s military personnel records and did not initiate further development because of a lack of specificity. In the February 2006 rating decision, the RO cited to a review of the Veteran’s personnel records which showed service as a cook in Vietnam from May 1968 to May 1969. The evidence did not demonstrate an assignment as a medic or that the Veteran cared for the wounded or dead, or that the Veteran faced rocket attacks. It was not until the present claim that the Veteran specifically indicated that he sustained an attack while working as a cook in a mess hall in Vietnam in 1969. In a statement received in April 2014, the Veteran described a new stressor wherein his company was hit by rockets and mortar fire in February 1969 while he was serving dinner. He reported that two of his friends that were medics died. In a November 2014 statement, the Veteran reported that rockets and mortar fire hit a mess hall, killing some of his friends. Therefore, although the service records that verify the stressor existed at the time of the February 2006 rating decision, the Veteran had not provided sufficient information for VA to identify and obtain these records because he had not provided sufficient information for VA to identify and obtain the records. He had generally described sustaining fire and witnessing dead bodies, both of which were not verifiable by a review of his military personnel records. In addition, he reported that these stressors occurred during 1967 and 1968, and not during his period of actual service in Vietnam from May 1968 to May 1969. Second, the Board addresses the representative’s argument the effective date should be revised to February 3, 2011, one year before the claim to reopen was submitted. Initially, the Board notes that the Veteran’s claim to reopen was received on November 27, 2012, not February 3, 2012. As discussed above, there are no informal or formal claims of record prior to November 27, 2012, after the February 2006 rating decision. The Veteran’s representative asserted that the current regulations for service connection for PTSD are liberalizing, and thus are governed by the regulations pertaining to effective dates of benefits awarded pursuant to a change of law. When compensation is awarded pursuant to a liberalizing law or regulation, the effective date may be the effective date of the law or regulation, or, if a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). However, those provisions are not for application in this case. The regulation referenced by the representative, 38 C.F.R. § 3.304 f)(3) relating to a stressor based on fear of hostile military or terrorist activity, is not a liberalizing regulation. See Stressor Determinations for PTSD, 75 Fed. Reg. 39,843 (July 13, 2010) (“The effective date of benefits awarded pursuant to this rule will be assigned in accordance with the facts found but will not be earlier than the date of claim. 38 U.S.C. 5110 (a). Although 38 U.S.C. 5110 (g) and 38 C.F.R. 3.114 (a) authorize in some circumstances an effective date of benefits before the date of claim, those provisions are applicable to “administrative issue[s]” that liberalize the basis for benefit entitlement. This regulation, however, governs procedural matters rather than creating a new basis for entitlement to service connection for PTSD because it merely relaxes under certain circumstances the evidentiary standard for establishing occurrence of a stressor. As a result, 38 U.S.C. 5110(a), rather than 38 U.S.C. § 5110(g), is applicable to awards under this rule”). Thus, 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114 are not applicable. Accordingly, an effective date of November 27, 2012, but no earlier, is for assignment. 2. Entitlement to a TDIU VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally will be deemed to exist when 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. The Veteran submitted a claim of entitlement to a TDIU in October 2015. Since October 2015, service connection is in effect for the following disabilities: PTSD, evaluated as 50 percent disabling; coronary artery disease, evaluated as 30 percent disabling; and a surgical scar, evaluated as noncompensable. For the time period on appeal, the Veteran’s combined disability evaluation is 70 percent. Thus, the percentage requirements for a TDIU are met because the Veteran has two or more service-connected disabilities, one of which is rated at least 40 percent disabling, and his combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16 (a). On his October 2015 application, he indicated that he last worked full time in December 2007 and had worked as a school crossing guard on a part time basis since September 2011. He reported that his highest gross earnings per month as a crossing guard was $500 to $600. On a supplementary application, the Veteran reported that he worked on an as-needed basis when he was hired as a crossing guard in 2011. Presently, he worked 15 hours per week. He reported that he earned $8,000 per year in his capacity as a crossing guard. The Veteran indicated that he finished high school but had received no additional education or training. In February 2016, VA received a VA Form 21-4192 from his employer, indicating that the Veteran had earned $8,551.38 in his capacity as a school crossing job. The evidence shows, therefore, that the Veteran works on a part-time basis as a school crossing guard. The Veteran earned $8,551.38, well below the poverty threshold for one person of $12,082. Therefore, the Veteran’s employment is marginal and does not preclude a TDIU under 38 C.F.R. § 4.16(a). The only remaining consideration is whether the Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment. At a November 2005 VA examination for PTSD, the examiner diagnosed moderately severe symptoms that were causing problems at work, although the Veteran was working as a mailman at that time. At September 2015 and February 2016 VA examinations for PTSD, the VA examiner found that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity. At a February 2016 VA examination for the Veteran’s heart, the examiner opined that the coronary artery disease prevented the Veteran from performing strenuous physical activities that require prolonged exertion or lifting of heavy objects. The examiner indicated that the Veteran could perform light physical and sedentary activities. In his March 2016 notice of disagreement, the Veteran again described working as a crossing guard. On duty, he would stand on a corner by himself and have no contact with people, a reason for him preferring this job. He alleged that he experienced difficulty in finding a job and that this job was the only one he could perform. Because he only earned $8,000 per year, he asserted his occupation was not gainful employment. In a May 2016 opinion, Dr. TS, a private physician who had treated the Veteran for many years, reported that the Veteran could no longer be gainfully employed due to his psychiatric disorders. A private treatment record from June 2016 documents that the Veteran had been placed on medications for depression and that he had recent complaints of shortness of breath, fatigue, and atypical chest discomfort. As a result, the Veteran’s physician suggested that the Veteran not work. The Board resolves reasonable doubt and finds that the Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment. The Veteran’s coronary artery disease precludes a wide variety of physical employment that would normally be available to an individual with only a high school education. In addition, it is clear from a review of the VA examinations and private treatment records for the Veteran’s PTSD that he suffers significant occupational impairment as a result of his psychiatric disorder. The Veteran’s private physicians opined that the Veteran is unable to work as a result of his psychiatric disorder, stress, and coronary artery disease symptoms. The Board therefore resolves reasonable doubt in the Veteran’s favor and finds that a TDIU is warranted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel