Citation Nr: 1807139 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-21 098 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a low back disorder, claimed as mechanical back strain. 2. Entitlement to an effective date earlier than March 13, 2015 for the award of a 100 percent disability rating for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) and alcohol use disorder. 3. Entitlement to an effective date earlier than December 11, 2012 for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: John S. Berry, Jr. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from October 1998 to October 2002 and again from July 2004 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2012, November 2015, and December 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Specifically, in the January 2012 rating decision the RO, in part, denied service connection for mechanical back strain. The November 2015 rating decision increased the Veteran's disability rating for PTSD with MDD and alcohol use disorder from 70 percent to 100 percent disabling effective March 13, 2015. The December 2015 rating decision granted a TDIU effective December 11, 2012. The Veteran testified before a Decision Review Officer (DRO) in December 2012. He also testified before the undersigned Veterans Law Judge via video conference in March 2014. Transcripts of these proceedings are associated with the claims file. The low back issue was previously before the Board in March 2015 and March 2017 and, on each occasion, was remanded for additional development. The issues of entitlement to service connection for a low back disorder and entitlement to an effective date earlier than December 11, 2012 for the award of 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. In a January 2012 rating decision, the RO granted service connection for PTSD; thereafter, the Veteran perfected an appeal regarding the initial disability rating assigned. 2. During the March 2014 Board hearing, the Veteran withdrew his appeal regarding a higher initial rating for his service-connected PTSD and, in a March 2015 decision, the Board noted the withdrawal and formally withdrew this issue from the Veteran's pending appeal. 3. On March 13, 2015, the Veteran was hospitalized for his PTSD and it was this hospitalization that served as an informal claim for an increased rating for his PTSD. 4. March 13, 2015 is the earliest recognizable date of claim for an increased rating for the Veteran's service-connected PTSD with MDD and alcohol use disorder following the March 2014 withdrawal. CONCLUSION OF LAW An effective date earlier than March 13, 2015, for the assignment of a 100 percent disability rating for PTSD with MDD and alcohol use disorder is legally precluded. 38 U.S.C. § 7105 (2014); 38 C.F.R. § 3.105(a) (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Specifically, an October 2011 letter included notice on how VA determines effective dates. Additionally, the November 2016 statement of the case included a discussion of the legal authority governing effective dates for awards of compensation, as well as an explanation of the reasons for the denial of the Veteran's request for an earlier effective date. Moreover, the Veteran has been afforded the opportunity to offer testimony and present evidence and argument with respect to the claim on appeal. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the Veteran. As will be explained below, the claim lacks legal merit. As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the Veterans Claims Assistance Act are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. Analysis Generally, the effective date of the award of an increase in compensation is either the date of claim or the dated entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within 1 year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). "Claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). According to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital can be accepted as an informal claim for increased benefits. See Servello at 199. The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(2). A "report of examination or hospitalization" under § 3.157(b) should "indicate that [a] Veteran's service-connected disability [has] worsened since the time it was last evaluated." Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Moreover, the term "report of examination" under § 3.157(b) "implies that the medical record in question must describe the results of a specific, particular examination." A letter may qualify if it, for instance, was "generated in connection with any particular VA medical examination" rather than, for example, a "claim for Social Security disability benefits that was pending at the time it was written." Massie, 25 Vet. App. at 133. Other considerations include whether the letter relates "the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation," rather than "present[ing] a very short summation of [the Veteran's general condition, as [the physician] had observed it over" time. Id. In making such determinations, the Board must consider all of the evidence, including that received prior to previous decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). By way of history, by rating decision dated in January 2012 the RO granted service connection for PTSD and assigned an initial 30 percent disability rating effective October 13, 2011, the date of the Veteran's claim. The Veteran disagreed with this decision and perfected an appeal. During the course of the appeal, the RO recharacterized the Veteran's service-connected PTSD to include MDD with alcohol use disorder. The RO also increased the Veteran's disability rating to 100 percent beginning October 13, 2011 (pursuant to 38 C.F.R. § 4.29); 50 percent beginning November 1, 2011; 100 percent beginning November 29, 2011 (pursuant to 38 C.F.R. § 4.29); 50 percent beginning February 1, 2012; 70 percent beginning December 11, 2012; 100 percent beginning January 27, 2013 (pursuant to 38 C.F.R. § 4.29); and 70 percent beginning April 1, 2013. Significantly, during the March 2014 Board hearing, the Veteran withdrew his appeal concerning a higher initial rating for service-connected PTSD. Subsequently, in a March 2015 decision, the Board formally withdrew this issue from the Veteran's pending appeal. A review of the Veteran's VA treatment records shows that on March 13, 2015, the Veteran was hospitalized for his PTSD, specifically suicidal ideation, for just one day. While he was discharged that same day, he was hospitalized again for his PTSD beginning March 17, 2015 for a longer period of time. The RO treated the March 13, 2015 VA hospitalization record as an informal claim for an increased rating for his PTSD and, based on these findings as well as the findings from an October 2015 VA psychiatric examination, increased the Veteran's disability rating for his PTSD from 70 percent to 100 percent disabling effective March 13, 2015. The Veteran contends that he met the criteria for a 100 percent disability rating for his PTSD prior to March 13, 2015. A claim for an earlier effective date must generally come before the Board as a result of a timely appeal from a decision granting service connection or an increased rating, because a Veteran cannot make a freestanding claim for an earlier effective date absent a claim of clear and unmistakable error (CUE) in a prior rating decision. Rudd v. Nicholson, 20 Vet. App. 296 (2006). A review of the claims file is negative for any correspondence dated between the March 2014 withdrawal of the appeal for an increased rating for PTSD and the March 13, 2015 VA hospitalization. Also, a review of the VA treatment records during this time period is negative for a "report of examination or hospitalization" with indications of a worsening of the Veteran's PTSD. Significantly, VA mental health treatment records dated from March 11, 2014 to March 5, 2015 show that the Veteran participated in group therapy regularly and was not suicidal. As the Veteran withdrew his appeal regarding a higher initial rating for his PTSD in March 2014, there is no formal or informal claim for a higher rating for his PTSD dated between March 2014 and March 13, 2015, and the Veteran has not argued that there was CUE in a prior decision, a claim for an effective date earlier than March 13, 2015 for the assignment of a 100 percent disability rating for PTSD with MDD and alcohol use disorder must be denied. See Rudd, 20 Vet. App. at 300; Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER An effective date earlier than March 13, 2015 for the assignment of a 100 percent disability rating for PTSD with MDD and alcohol use disorder is denied. REMAND With regard to the low back issue, this issue was previously remanded by the Board on two occasions to obtain a medical opinion. First, in March 2015, the Board remanded the Veteran's claim of service connection for a low back disorder in order for the AOJ to obtain an adequate medical opinion that addressed whether there is an etiologic relationship between the Veteran's current low back disorder and his military service. Significantly, while the record included a December 2011 VA examination showing a diagnosis of mechanical back strain and a negative nexus opinion on the theory of direct service connection, the Board noted that the Veteran's September 1998 enlistment examination noted the Veteran had lumbar lordosis and that, during service in 2001, the Veteran complained of low back pain and was diagnosed with mechanical back strain. The law provides that Veterans shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Thus, there is a rebuttable presumption of soundness unless a condition is noted at entry. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). As a result of the foregoing, the Board requested that a VA physician provide an opinion addressing whether there is clear and unmistakable evidence that the Veteran's low back disorder existed prior to service and, if so, whether the Veteran's low back disorder underwent an increase in severity during service. In October 2015, the VA physician that performed the December 2011 VA examination opined that there is clear and unmistakable evidence that a low back disorder existed prior to service, as back x-rays and levels of deformity were clearly noted on his 1998 enlistment examination. The VA physician also opined that it was less likely that the back disorder underwent an increase in severity during service, noting that the in-service incident in 2001 was isolated and not chronic. While the December 2011/October 2015 VA physician opined that there is clear and unmistakable evidence that a low back disorder existed prior to service and provided a rationale in support of his aggravation opinion, he did not use the correct evidentiary standard when considering whether there was evidence of aggravation during service. Indeed, he stated that it was less likely that the Veteran's pre-existing low back disorder was aggravated (underwent a permanent increase in severity during service), whereas the proper inquiry is whether there is clear and unmistakable (undebatable) evidence that the pre-existing disorder was not aggravated during service, which is an higher, "onerous" evidentiary standard that must be met by VA. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Vanerson v. West, 12 Vet. App. 254, 258 (1999); see also 38 C.F.R. § 3.304(b) (noting clear and unmistakable evidence is evidence that is "obvious or manifest"); Wagner, 370 F.3d at 1096. In the March 2017 remand, the Board found that, as the October 2015 VA opinion did not utilize the correct evidentiary standard, the opinion regarding the in-service aggravation element of this claim was inadequate. As such, the Board remanded the claim again to obtain an adequate medical opinion. Pursuant to the March 2017 remand, the December 2011/October 2015 VA examiner was given the opportunity to supplement his opinion in April 2017. Unfortunately, the April 2017 opinion also does not use the correct evidentiary standard when considering whether there is evidence of aggravation during service. Again, while the April 2017 opinion found that there was "clear and unmistakable evidence" that the low back disability existed prior to service, the examiner simply found that there was "no evidence that suggests or shows a true aggravation of the back" during service. As above, the proper inquiry is whether there is clear and unmistakable (undebatable) evidence that the pre-existing disorder was not aggravated during service, which is an higher, "onerous" evidentiary standard that must be met by VA. Also, it is unclear whether the Veteran has had a low back disorder during the course of this appeal, to include his pre-existing lumbar lordosis. Significantly, the December 2011 VA examination report does not show a diagnosis of lumbar lordosis. Also, while the December 2011 VA examiner diagnosed mechanical back strain, the examiner also noted that this was diagnosed in 2001 (when the Veteran was in service) and suggested that such disability had resolved. Furthermore, during a subsequent December 2012 RO hearing, the Veteran testified that he had been diagnosed with disc wedging/compression of his low back. As such, the Board finds that an additional VA examination would be helpful in this case to determine whether the Veteran has a current low back disorder or has had one during the course of this appeal. Notably, even if the Veteran does not have a current low back disorder, in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. Also, in Romanowsky v. Shinseki, 26 Vet.App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. On remand, the Veteran should be afforded a new VA examination from a different examiner to determine whether he has had a back disorder at any point during the appeal period beginning October 2011 and, if so, whether there is "clear and unmistakable evidence" that a pre-existing back disorder was not aggravated by the Veteran's military service. With regard to the TDIU issue, the Board notes that while the Veteran did not meet the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a) prior to December 11, 2012, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the record shows that the Veteran last worked full time as a nurse in August 2011 and contends that he stopped working due to his service-connected psychiatric disorder. He submitted a formal claim for a TDIU in December 2011. Significantly, the record shows that the Veteran was homeless as early as November 2011 due to his PTSD and that he has been hospitalized on several occasions since October 2011. As such, it appears that the Veteran was unable to follow a substantially gainful occupation due to his service-connected psychiatric disorder prior to December 11, 2012. Under the provisions of 38 C.F.R. § 4.16(b), the Board finds that the Veteran's claim should be submitted to the Director of Compensation and Pension for a determination as to whether a TDIU should be awarded on an extra-schedular rating basis. The Board finds that the evidence discussed above is plausible evidence that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected psychiatric disability. Accordingly, the Board finds that the claim should be submitted to the Director of Compensation and Pension for extraschedular consideration of a TDIU under 38 C.F.R. § 4.16(b). Additionally, a review of the claims file includes VA treatment records dated through April 2017. Given the Veteran's contention that he has been diagnosed with an additional low back disorder since the December 2011 VA examination, the Veteran should be given an opportunity to identify any outstanding VA or non-VA treatment records for his claimed disabilities. Thereafter, all identified records, to include VA records dated from April 2017 to the present, should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any outstanding VA or non-VA treatment records pertinent to his claimed disabilities. Request that the Veteran provide sufficient information and, if necessary, authorization to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. All adequately identified records should be obtained, to include VA treatment records dated since April 2017. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to take. 2. Schedule the Veteran for an in-person examination to determine the current nature and etiology of his claimed low back disorder. The claims file should be made available for review. Following a review of the record and examination of the Veteran, the examiner is asked to furnish an opinion with respect to the following: (A) The examiner should identify whether the Veteran has a current diagnosis of a low back disorder or has had a diagnosis of a low back disorder at any point during the appeal period beginning October 2011, to include lumbar lordosis, mechanical back strain, and disc wedging/compression. Significantly, the examiner should note the absence of a diagnosis of lumbar lordosis during the December 2011 VA examination, reconcile the diagnosis of mechanical back strain along with the suggestion that the Veteran did not have a current low back disorder during the December 2011 VA examination, and consider the Veteran's December 2012 testimony that he has been diagnosed with disc wedging/compression of the low back. (B) The examiner should then opine whether there is clear and unmistakable evidence that a low back disability existed prior to service. (C) If the examiner determines that a low back disorder did clearly and unmistakably exist prior to service, the examiner must address whether there is clear and unmistakable (undebatable, obvious, or manifest) evidence that the disability was not aggravated by such service. Note: Aggravation means that the disability was permanently worsened beyond the natural progression of the disease; temporary or intermittent flare-ups of a preexisting injury during service are insufficient to constitute aggravation in service, unless the underlying condition itself, as contrasted with mere symptoms, has worsened. In addressing the above, the physician must consider and discuss all relevant medical and other objective evidence, including the 2001 service treatment record showing the Veteran complained of low back pain and was diagnosed with mechanical back strain after injuring himself. The examiner must also consider and discuss all lay assertions, including the Veteran's assertions that his current low back disorder is related to the strenuous jobs he had during service, which included handling heavy machinery around aircraft while wearing heavy gear. See transcripts from December 2012 DRO hearing and March 2014 Board hearing. (D) If the examiner determines there is clear and unmistakable evidence that a low back disorder existed prior to service and clear and unmistakable evidence that the low back disorder was not aggravated by such service, the examiner must opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a current low back disorder was incurred in or is otherwise related to his military service. In addressing the above, the physician must consider and discuss all relevant medical and other objective evidence, as well as all lay assertions. A complete rationale must be provided for each opinion offered. 3. Refer this case to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of assignment of an extraschedular TDIU under the provisions of 38 C.F.R. § 4.16(b). 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claims remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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 (2014). ______________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs