BVA9502473 DOCKET NO. 90-24 657 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE 1. Entitlement to an effective date earlier than July 14, 1989, for a grant of service connection for post-traumatic stress disorder. 2. Entitlement to an increased rating for post-traumatic stress disorder, currently rated as 50 percent disabling. REPRESENTATION Appellant represented by: Washington Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Michael P. Vander Meer, Associate Counsel INTRODUCTION The veteran served on active duty from February 1968 to February 1970. This appeal arises from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. This case was last before the Board of Veterans' Appeals (Board) in December 1992, at which time it was remanded for further development. Following completion of the requested development, a rating decision entered in August 1994 continued to deny an increased rating for post-traumatic stress disorder, and a Supplemental Statement of the Case was issued the same month. The appeal was returned to and redocketed at the Board in November 1994. The August 1994 rating decision, referred to above, in addition to continuing to deny an increased rating for post-traumatic stress disorder, also denied the veteran's application to reopen a claim of entitlement to service connection for schizophrenia, and denied entitlement to secondary service connection for schizophrenia, and entitlement to a total rating based on unemployability due to service-connected disabilities. Following inclusion of the latter three issues in the Supplemental Statement of the Case mailed to the veteran in August 1994, no substantive appeal, with respect to any of the foregoing issues, has been submitted by the veteran or his representative on his behalf. Accordingly, these issues are not currently before the Board. CONTENTIONS OF APPELLANT ON APPEAL In asserting entitlement to an effective date earlier than July 14, 1989, for a grant of service connection for post-traumatic stress disorder, the veteran contends that he has suffered from post-traumatic stress disorder since service and that the proper effective date for a grant of service connection for post-traumatic stress disorder should, therefore, be the day following his discharge from service. He also points out that, inasmuch as he was suffering from psychiatric disability at that time, he was not mentally competent to handle the process of filing a claim. In the alternative, he asserts that the proper effective date should be the date of receipt of his original claim for service connection for such disability, inasmuch as the report of a VA examination performed in July 1983 referred to several stressful inservice incidents which he feels were sufficient to substantiate a diagnosis of post-traumatic stress disorder, or at least obligate VA to undertake a more detailed examination concerning such possible condition, at that time. He also directs the Board's attention to a June 1988 claim for service connection for a "chemical imbalance," which he feels should have been construed as a claim for service connection for post-traumatic stress disorder. With respect to his claim for an increased rating for post-traumatic stress disorder, the veteran states that he experiences frequent nightmares and that he is generally precluded from maintaining relationships with any member of the public at large. He states that he has been dismissed from multiple janitorial jobs in recent years because he cannot get along well with people and has difficulty following orders. He states that he is currently unemployed, and indicates that he recently was able to last 1 1/2 years on a job only because his employer understood the nature of his problems. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the assignment of an effective date earlier than July 14, 1989, for a grant of service connection for post-traumatic stress disorder; and that the evidence supports a total schedular evaluation for post-traumatic stress disorder. FINDINGS OF FACT 1. Service connection for post-traumatic stress disorder was denied in an October 1983 rating decision; the veteran was provided a statement of the case in response to his notice of disagreement with this decision, but he failed to file a substantive appeal in response to the statement of the case. 2. The veteran's reopened claim for service connection for post- traumatic stress disorder was received on July 14, 1989. 3. The veteran's post-traumatic stress disorder is productive of total social and industrial impairment. CONCLUSIONS OF LAW 1. The requirements for an effective date for a grant of service connection for post-traumatic stress disorder prior to July 14, 1989, have not been met. 38 U.S.C.A. §§ 5110, 5107 (West 1991); 38 C.F.R. § 3.400 (1993). 2. The criteria for a 100 percent schedular evaluation for post-traumatic stress disorder have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 9411 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that each claim on appeal is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that each claim is plausible. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). I. Earlier Effective Date Under the law, in the context of this case, the effective date of an evaluation and award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In asserting entitlement to an effective date for a grant of service connection for post-traumatic stress disorder prior to July 14, 1989, the veteran's primary contention is that the proper effective date for such grant, inasmuch as he suffered from post-traumatic stress disorder at the time of his discharge from service and was, in addition, thereby rendered mentally incompetent to handle the process of filing a claim at that time, is the day following his discharge from service. In this regard, however, the Board would emphasize that, while it has considered the foregoing contention, the earliest effective date assignable for such disorder, pursuant to 38 U.S.C.A. § 5110, is the date of receipt of his claim since his original claim was not received until more than one year following his discharge from service. See KL v. Brown, 5 Vet.App. 205, 208 (1993). Further, with respect to the veteran's assertion that he was mentally precluded by psychiatric conditions including post-traumatic stress disorder from being able to handle the process of filing a claim, the Board would point out that, while Congress has provided specifically for tolling of the operation of a statute, due to mental disability, pertaining to VA education benefits, its failure to enact such provision bearing on the pertinent criteria of 38 U.S.C.A. § 5110 governing the effective date of an award of service connection can reasonably be interpreted as suggesting, absent other indications to the contrary, that the applicability of such criteria is not suspended by virtue of a claimant's mental disability. See Viglas v. Brown, 7 Vet.App. 1, 6 (1994). In the alternative, the veteran asserts that he submitted a claim for service connection for post-traumatic stress disorder in April 1983, subsequent to which the report of a July 1983 VA examination was suggestive of such condition, and that service connection for such disability, which was effectuated in a November 1989 rating decision, should be established from the April 1983 date of the original claim. In this regard, subsequent to receipt on April 11, 1983, of the veteran's original claim for service connection for post-traumatic stress disorder, the diagnosis on VA examination in July 1983, on which the veteran referred to several stressful incidents he experienced in Vietnam, was probable chronic paranoid schizophrenia; it was the examiner's impression that the veteran did not meet the criteria for a diagnosis of post-traumatic stress disorder. Entitlement to service connection for such disability was denied in a rating decision entered in October 1983, subsequent to which, following receipt of a timely notice of disagreement, a Statement of the Case was mailed to the veteran in July 1985. The veteran did not file a substantive appeal in response to the foregoing Statement of the Case, and thus the October 1983 rating denial of service connection for post-traumatic stress disorder became final. See 38 U.S.C.A. § 7105 (West 1991). The Board notes that the veteran was represented by a service organization in July 1985, and neither he nor his representative requested an extention of the time period for filing a substantive appeal. Moreover, the Board is aware of no statutory or regulatory basis for retroactively extending the time period for the filing of a substantive appeal. Correspondence from the veteran dated in June 1988 asserted entitlement to service connection for a "chemical imbalance," for which condition the veteran indicated he had received treatment, to include injections of medication, since 1970. On July 14, 1989, correspondence was received from the veteran's representative wherein the RO was specifically directed to consider service connection "for PTSD." Such disorder was initially diagnosed on VA examination in September 1989, and service connection for post-traumatic stress disorder, effective from July 14, 1989, the date of receipt of the veteran's reopened claim, was granted in a rating decision entered in November 1989. Since the October 1983 rating denial of service connection for post-traumatic stress disorder was not appealed and became final, and inasmuch as the June 1988 claim for service connection for a "chemical imbalance" neither referred to post-traumatic stress disorder nor contained information from which a claim for service connection for such disorder might be reasonably inferred, the date of receipt of the veteran's reopened claim for service connection for such disorder, July 14, 1989, is, pursuant to the law and regulations set forth above, the proper effective date for a grant of service connection for such disability. Accordingly, entitlement to an effective date for service connection for post-traumatic stress disorder prior to July 14, 1989, is not established. 38 U.S.C.A. §§ 5110, 5107; 38 C.F.R. § 3.400. In making the foregoing determination, the Board acknowledges the veteran's contention to the effect that the findings on the July 1983 VA examination were sufficient to substantiate a diagnosis of post-traumatic stress disorder at that time or, in the alternative, obligate VA to conduct additional studies relative to ascertaining the possible presence of such disorder. However, while the Board has considered the foregoing contention, it would respectfully point out that such assertion, bearing solely on the sufficiency of the July 1983 VA examination, is not material to the disposition of the earlier effective date issue addressed above since the veteran did not appeal the October 1983 decision and has not raised the issue of clear and unmistakable error in that decision. II. Increased Rating For Post-Traumatic Stress Disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1993). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10 (1993). Service connection is in effect for post-traumatic stress disorder, for which the RO has assigned a 50 percent rating under the provisions of Code 9411 of the Rating Schedule. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 (1993), and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's post-traumatic stress disorder. The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of the remote clinical history pertaining to the veteran's post-traumatic stress disorder. Under the schedular criteria, the evaluation of the veteran's service-connected post-traumatic stress disorder turns on the severity of his overall social and industrial impairment. A 50 percent rating is warranted where such impairment is of considerable severity; a 70 percent rating is warranted where such impairment is severe. A 100 percent evaluation is warranted if the disability is productive of virtual isolation in the community or profound retreat from mature behavior, or if it renders the veteran demonstrably unable to retain employment. When examined by VA in August 1991, at which time the veteran indicated that he was then working five hours daily as a janitor, it was noted that the veteran had, for a number of years, carried dual diagnoses of schizophrenia and post-traumatic stress disorder. Findings on mental status examination included markedly flat affect, orientation in all spheres and some difficulty in concentration. The veteran was noted to experience impaired sleep on a nightly basis, with frequent nightmares of his Vietnam experiences. He was also noted to remain hypervigilant and to have ongoing avoidance phenomena, as well as startle response. The diagnoses included post-traumatic stress disorder and schizophrenia, in partial remission. The examiner further commented that the veteran's schizophrenia was reasonably well controlled, though his ongoing post-traumatic stress disorder symptoms, when severe, appeared to lead to further schizophrenic decompensation. The examiner further indicated that the veteran appeared to have severe occupational and social impairment due to post-traumatic stress disorder. A February 1993 clinical summary from a non-VA psychiatrist, Jean Cavendish, M.D., who had been seeing the veteran since March 1990, noted that the veteran's mood swings and ability to be task oriented had worsened and that the veteran had become unemployable. The veteran was noted to be plagued by nightmares and flashbacks, at which times he would lose touch with reality, and he was described as having become "virtually isolated in the community" and generally unable to establish and maintain favorable relationships with people in general. The psychiatrist felt that the veteran was totally disabled by post-traumatic stress disorder, which disorder, in the psychiatrist's opinion, mimicked paranoid schizophrenia because of its severity and its overwhelming nature. When most recently examined by VA in March 1993, the veteran was noted to have last worked part time as a janitor, from which position he had been fired because of difficulty getting along, and he was noted to be taking medication for schizophrenia, as well as post-traumatic stress disorder. The veteran related that he experiences nightmares ranging in frequency from on a nightly basis to sometimes only every week or two, although it was indicated that he had become much more vigilant in recent months. It was noted that the veteran had been hospitalized in the summer of 1990 in response to an exacerbation in his post-traumatic stress disorder symptoms precipitated, in part, by the sound of helicopters. Findings on mental status examination included a markedly restricted affect, though the veteran was alert and oriented; his memory for details, judgment and level of insight were poor. He appeared to be experiencing a marked degree of guardedness, paranoia and hypervigilance, although it was unclear, because of the veteran's guardedness, whether there was any actual delusional thought process. The diagnoses were post-traumatic stress disorder, chronic, severe, and chronic schizophrenia. The examiner commented that the veteran had, in recent months, experienced a severely disabling exacerbation of symptoms; that he exhibited symptoms of both post-traumatic stress disorder and schizophrenia; and that, in essence, it was possible that exacerbation of the veteran's post-traumatic stress disorder symptoms was productive of exacerbation of his psychotic symptoms, which combination, in turn, rendered his post-traumatic stress disorder symptoms more disabling. The examiner also indicated that, based on the veteran's examination interview, it would be unrealistic to expect the veteran to work in his current mental condition. In considering the veteran's claim for an increased rating, the Board has taken note of the reference by Dr. Cavendish on the related February 1993 clinical summary, referred to above, to the effect that the veteran's post-traumatic stress disorder had rendered him essentially totally isolated in the community with no ability to maintain favorable relationships with people in general. The foregoing opinion, considered in conjunction with hearing testimony to the effect that the veteran frequently retreats into his bedroom if company visits his home, is found to be indicative of post-traumatic stress disorder productive of total social impairment. The Board is similarly of the opinion that the veteran's post-traumatic stress disorder is productive of total industrial impairment. In making this latter determination, the Board notes that the veteran, who is last noted to have been working on a part-time basis as a janitor when examined by VA in August 1991, was noted to be unemployable in the February 1993 clinical summary by Dr. Cavendish, wherein an opinion was expressed that the veteran was totally disabled by post-traumatic stress disorder. On VA examination in March 1993, at which time the veteran was noted to have been dismissed from his most recent employment as a janitor and to have a very unstable work history, the examiner commented, after noting on mental status examination that the veteran's memory for details was very poor, that any expectation of the veteran's working in his current mental condition was unrealistic. Accordingly, inasmuch as the veteran's post-traumatic stress disorder is shown to be currently productive of total social and industrial impairment, a 100 percent schedular evaluation for post-traumatic stress disorder is warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, Diagnostic Code 9411. ORDER An effective date earlier than July 14, 1989, for a grant of service connection for post-traumatic stress disorder is denied. A 100 percent schedular evaluation for post-traumatic stress disorder is granted, subject to the criteria governing the payment of monetary benefits. SHANE A. DURKIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.