Citation Nr: 1806462	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  13-24 885	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for a bruised tailbone.

2.  Entitlement to service connection for cervical spondylosis, to include as secondary to a bruised tailbone.

3.  Entitlement to service connection for lumbar spondylosis, to include as secondary to a bruised tailbone.

4.  Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include bipolar disorder and depression.

5.  Entitlement to an increased rating for PTSD, currently evaluated as 30 percent disabling.

6.  Entitlement to an effective date earlier than October 12, 2011 for the award of a 30 percent evaluation for PTSD.

7.  Entitlement to a total rating based on unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Andrew L. Wener, Attorney at Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Barone, Counsel


INTRODUCTION

The Veteran had active service from May 1974 to November 1976.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  That decision denied service connection for a bruised tailbone, a cervical spine disability, a low back disability, and depression; awarded an evaluation of 30 percent for PTSD, effective October 12, 2011; and denied a TDIU.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) in November 2015.  A transcript of his hearing has been associated with the record.

With respect to the Veteran's claim for an acquired psychiatric disorder, the Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) addressed the scope of claims generally in regard to what is claimed versus what should be addressed by VA.  The Court held that, in determining the scope of a claim the Board must consider the Veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim.  Id. at 5.  In light of the Court's decision in Clemons and the varying descriptions of the Veteran's psychiatric symptoms, the Board recharacterized the issue to the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons, as reflected above.

The Board notes that during his November 2015 hearing, the Veteran asserted that he is unemployable due to his service-connected disabilities.  The U.S. Court of Appeals for Veterans Claims (Court) has held that a TDIU claim cannot be considered separate and apart from an increased rating claim.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Instead, the Court held that a TDIU claim is an attempt to obtain an appropriate rating for a service-connected disability.  The Court in Rice also found that, when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability.  The issue of TDIU is therefore considered to be before the Board.

The issues of entitlement to service connection for a bruised tailbone, cervical spondylosis, lumbar spondylosis, and an acquired psychiatric disorder other than PTSD; an increased rating for PTSD; and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  There was no formal or informal claim for an increased rating for PTSD prior to the October 12, 2011 claim.

2.  It is not factually ascertainable that the Veteran's PTSD increased in severity within one year preceding the October 12, 2011 claim for increase.  


CONCLUSION OF LAW

The criteria for an effective date prior to October 12, 2011 for the assigned 30 percent rating for PTSD have not been met.  38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017).  

A letter dated in November 2011 advised the Veteran of the allocation of duties between himself and VA regarding the development of a claim for benefits and explained the manner in which VA determines disability ratings and effective dates.  

The Board finds that the content of the notices fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify.  The appellant was provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices.  Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claims.  

Moreover, in cases where service connection or an increased evaluation has been granted and the evaluation and effective date have been assigned, the underlying claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  See Dingess v. Nicholson, 19 Vet. App. 473   (2006).  Thus, as the Veteran's claim for an earlier effective date was appealed directly from the rating decision which awarded the 30 percent evaluation for PTSD, no further action under section 5103(a) is required.  Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

Analysis

The Veteran asserts that the 30 percent evaluation for PTSD should be awarded prior to October 12, 2011.  

Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  If, however, it is factually ascertainable that an increase in disability had occurred within the one year immediately preceding the date of receipt of the claim, then the Veteran can receive this earlier effective date.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

Under applicable laws and regulations, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of claim.  If the increase occurred after the date of claim, the effective date is the date of increase.  38 U.S.C. 5110(b)(2) (West 2012); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400  (o)(1)(2) (2017); VAOPGCPREC 12-98 (1998).  In making this determination, the Board must consider all of the evidence, including that received prior to previous final decisions.  Hazan v. Gober, 10 Vet App 511 (1997).

VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014).  The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.  As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied.

Under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim.  The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.  

The Board observes that thorough review of the record reveals no definitive indication of worsening of the Veteran's PTSD in the year prior to his October 2011 claim for increase.  In this regard, while there are reports of hospitalization noting admission for substance abuse and depressive disorder in July 2010, this is more than a year prior to the Veteran's October 2011 claim for increase, and cannot be considered in determining that there was an increase in the severity of the Veteran's PTSD for the purpose of determining the effective date of the 30 percent evaluation.  The Board also reviewed VA outpatient records for the period from April 2011 to May 2011.  These included records from VA social workers, pharmacists, nurses, addiction therapists, and group therapy providers.  None of these records specifically address the Veteran's PTSD symptomatology; rather, pertinent records focus on the Veteran's addiction and its treatment.  

None of the medical evidence of record in the year prior to the Veteran's claim for increase addresses the Veteran's PSTD symptoms with the level of specificity to support a finding that an increase in severity occurred during that period.   Thus, it cannot be stated that an increase in severity of the Veteran's PTSD was factually ascertainable in the one year period prior to the Veteran's October 12, 2011 claim for increase.  Thus, under the law, an effective date earlier than October 12, 2011, the date of receipt of the Veteran's claim for increase, is not warranted.


ORDER

Entitlement to an effective date prior to October 12, 2011 for the award of a 30 percent evaluation for PTSD is denied.


REMAND

Service Connection for Bruised Tailbone, Cervical Spine Disability, and Low Back Disability

Service treatment records reflect that in September 1975, the Veteran was seen with complaints of a neck injury.  The assessment was questionable pulled muscle in neck; medication was prescribed.  In January 1976, the Veteran was seen with complaints of a sore tailbone.  He reported that he landed on his tailbone during training the previous day.  Objectively, he was tender over the coccyx.  An X-ray revealed slight anterior angulation of the coccyx.  The radiologist stated that this might be a normal variant, but that fracture could not be excluded.  Subsequently in January 1976, the Veteran complained of low back pain.  During his November 2015 hearing, the Veteran testified that he had experienced symptoms relating to his tailbone, neck, and back during and continuously since service.  He stated that he could no longer work in manual labor because of neck and back problems.  

In light of evidence of injury during service and the Veteran's report of continuous symptoms since service, the Board has determined that a VA examination is warranted to determine the nature and etiology of any current tailbone, cervical spine, or low back disability.  See McLendon v. Nicholson, 20 Vet App. 79 (2006).

Service Connection for Acquired Psychiatric Disorder and Evaluation of PTSD

The Veteran's November 2015 hearing testimony suggests that his PTSD has worsened.  He indicated that he had tried to work part time during the previous year but could not tolerate being around other people.  The Board additionally notes that the Veteran was most recently afforded a psychiatric examination in November 2011, more than six years ago.  In light of evidence suggestive of worsening, the Board concludes that a current examination is necessary.  

With respect to service connection for an acquired psychiatric disorder other than PTSD, the Board notes that on VA examination in November 2011, the examiner provided diagnoses of PTSD and bipolar disorder not otherwise specified (NOS).  She stated that symptoms of each disorder could be differentiated.  However, the record contains other diagnoses, to include depressive disorder, which is noted in a May 2009 VA examination report and in other treatment records.  It is unclear whether any currently present acquired psychiatric disorder other than PSTD should be assessed in conjunction with his PTSD symptoms.  Moreover, in light of the Board's conclusion that a current examination is warranted to assess the severity of the Veteran's PTSD, the Board finds that the question of whether any additional acquired psychiatric disorder is related to PTSD (i.e., is part and parcel with the Veteran's PTSD symptoms) should be addressed.  

TDIU

The Board notes that further development and adjudication of the service connection claims and the claim for an increased rating for PTSD may provide evidence in support of the claim for a TDIU.  The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue.  See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination to determine the nature, extent and probable etiology of any currently present disability of the tailbone, lumbar spine, and cervical spine.  The claims folder should be forwarded to the examiner for review.  The examiner should be directed to elicit a complete history from the Veteran.  All indicated studies should be performed.

Following examination of the Veteran and review of the record, the examiner should identify all diagnoses pertaining to the Veteran's tailbone, lumbar spine, and cervical spine.  With respect to each diagnosis, the examiner should provide an opinion regarding whether more likely than not (i.e., probability greater than 50 percent) that such disorder is related to any disease or injury during service, to include the injury to the Veteran's tailbone that is documented in his service treatment records.

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

A discussion of the complete rationale for all opinions expressed should be included in the examination report.

2.  Schedule the Veteran for a VA examination to determine the current severity of his PTSD, and the etiology of any other acquired psychiatric disorder that is diagnosed.  The claims folder should be forwarded to the examiner for review.  The examiner should be directed to elicit a complete history from the Veteran.  All indicated studies should be performed.

Following examination and review of the claims file, the examiner should discuss the manifestations of the Veteran's PTSD and their severity.  

The examiner should also indicate whether a separate diagnosis of any other acquired psychiatric disorder is appropriate, and if so, whether such symptoms can be effectively distinguished or disassociated from PTSD.  In addressing this question, the examiner should specifically note diagnoses of depression and bipolar disorder made by other providers, as documented in the record.

A discussion of the complete rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. 

3.  Thereafter, review the VA examination reports to ensure compliance with the directives of this remand; if not, the AOJ should implement corrective procedures.

4.  Then, readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand.  If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period of time within which to respond thereto.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals 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).




______________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs