Citation Nr: 0003801 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-04 913A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an effective date prior to November 17, 1994, for a 100 percent evaluation for post-traumatic stress disorder (PTSD). 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael A. Holincheck, Associate Counsel INTRODUCTION The veteran served on active duty from January 1967 to February 1970, to include combat service in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO). The issue of entitlement to an earlier effective date was previously before the Board in February 1998. The veteran had originally sought an increased rating for his service- connected PTSD in December 1993, and was granted a 100 percent rating in August 1996. In September 1996, the veteran's representative provided notice of disagreement with the effective date established for the award of the 100 percent disability rating. The issue of an earlier effective date was certified on appeal to the Board in compliance with existing case law. Holland v. Brown, 9 Vet. App. 324 (1996) (holding that a notice of disagreement, filed pursuant to 38 U.S.C. § 7105, may initiate an appeal to the Board with respect to elements of an issue which were not decided by the agency of original jurisdiction in the decision with which disagreement was expressed). The Board dismissed the veteran's appeal at that time, without prejudice, as being untimely. The Board found that the veteran had not filed a timely appeal in regard to the effective date established by the August 1996 rating decision. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that an RO's initial decision regarding a claim for benefits might not resolve, or even address, all necessary elements of the application for benefits, and that another notice of disagreement is required to initiate appellate review of any other element, including compensation level or effective date, of the claim). The case was returned to the RO for appropriate action consistent with an August 26, 1997, letter from the Director of the Compensation and Pension Service, Veterans Benefits Administration, following the decision of the United States Court of Appeals for the Federal Circuit in Grantham. Subsequent to the Board's decision, the RO issued an appropriate statement of the case and the veteran perfected an appeal of the earlier effective date issue. Accordingly, the issue is ripe for appellate review by the Board. The Board also notes that the veteran originally requested a Travel Board hearing at the time he submitted his substantive appeal in July 1995 and when he submitted his notice of disagreement in regard to his TDIU claim in April 1996. However, the veteran submitted statements dated in October 1998, and February 1999 wherein he stated that he no longer desired to have a hearing. Accordingly, the veteran's case will be adjudicated based upon the evidence of record. 38 C.F.R. § 20.704(e) (1999). FINDINGS OF FACT 1. The RO received the veteran's claim of entitlement to an increased rating for PTSD on December 13, 1993. 2. Preponderance of the evidence reflects that veteran last worked on November 4, 1994. 3. The veteran was hospitalized for treatment for his PTSD from November 5, to November 9, 1994, and then from November 17, 1994, to January 10, 1995. 4. The earliest date as of which it is factually ascertainable that the veteran's PTSD had increased in severity so as to meet the criteria for a 100 percent rating is November 5, 1994. 5. An informal claim for TDIU was received from the veteran on August 28, 1995. A formal claim was received on December 11, 1995. CONCLUSIONS OF LAW 1. The requirements for an effective date of November 5, 1994, for an award of a 100 percent disability evaluation for PTSD, have been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. §§ 3.102, 3.400 (1999). 2. The criteria for a total disability evaluation based on individual unemployability have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Earlier Effective Date for PTSD Here, the Board is asked to assign an earlier effective date for the 100 percent rating prior to November 17, 1994. The general rule in regard to effective dates is, except as otherwise provided, 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 the later. In regard to claims for increased compensation, the law also provides that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received by the VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b) (West 1991); 38 C.F.R. § 3.400(o)(1), (2)(1999). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Another applicable regulation is 38 C.F.R. § 3.157(b)(1) (1999) which provides that 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 veteran was granted service connection for his PTSD and assigned a 30 percent rating in June 1992. The veteran submitted a claim for an increase to his disability rating that was received by the RO on December 13, 1993. He stated that he still had bad flashbacks that were getting worse. He also had dreams of the war. The veteran also submitted a statement in support of his claim that was received in January 1994. The veteran provided information regarding his symptoms and how they were affecting his daily life. He related that he had missed five days of work over the past year because of his PTSD symptoms. He has submitted several statements wherein he maintains that he was last employed on November 4, 1994. The veteran was afforded a VA PTSD examination in January 1994. The veteran was employed. The examiner noted that the veteran continued to exhibit significant signs and symptoms of PTSD. The examiner further noted that the veteran had recently experienced a worsening of symptoms but this had not had a negative impact on his psychosocial functioning and work performance. Associated with the claims file are VA treatment records for the period from July 1992 to February 1994. The records reflect ongoing routine psychiatric care and substance abuse aftercare provided to the veteran, as well as an inpatient period from June to July 1992 for alcohol and nicotine dependence. They reflect that the veteran continued to experience PTSD symptoms during the period covered. However, there was no indication in the records to show the veteran to be totally disabled as a result of his PTSD. An entry dated January 11, 1994, noted that the appellant worked in a factory and that his job was "going well." In a statement received on November 16, 1994, the RO was notified by the representative that the veteran had recently been released from a period of hospitalization. The veteran's representative submitted a second statement in December 1994 informing the RO of the veteran's second period of hospitalization beginning on November 17, 1994. Associated with the claims file is a VA discharge summary from the VA medical center (VAMC) at Marion, Illinois, for the period from November 17, 1994, to January 10, 1995. The summary reflects that the veteran was admitted after being depressed and having suicidal thoughts. The summary further noted that the veteran was released from the VAMC on November 9, 1994, after having been admitted the prior weekend following an episode of drinking and saying he was going to hurt someone. The veteran related that he had been under a lot of pressure at work. The summary stated that the veteran was to have a one month period of convalescence before returning to work. Associated with the claims file are VA treatment records for the period from August 1994 to January 1996. The records prior to November 1994 do not reflect any indication of the veteran's unemployability. An entry dated November 15, 1994, noted the veteran's brief inpatient stay on the prior weekend because of suicidal ideation. An entry dated March 29, 1995, reported that the veteran was on sick leave from his job. Finally, VA examinations in March 1996 and October 1998, as well as a discharge summary dated in April 1996, continued to demonstrate the veteran's severe PTSD symptomatology. However, neither the examination reports nor the discharge summary provide a basis to establish that the veteran was totally disabled due to PTSD prior to November 1994. In applying the statutory and regulatory criteria to the facts of this case, the Board notes that the fact pattern in this case is similar to that of Harper. In Harper, the Court held that where the filing of the claim for an increased rating preceded a factually ascertainable increase in disability, 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) were not applicable. In such cases where the claim precedes the increase, the effective date is governed by the later of the date of increase or the date the claim was received. Harper, 10 Vet. App. at 127. In this case, the veteran's claim for an increased rating was received at the RO in December 1993. However, there was no medical evidence of record at that time to support the assignment of 100 percent rating. Indeed, the VA outpatient treatment records reported that the veteran was doing well at his job as of January 1994. Moreover, the January 1994 VA examination reported that the veteran's worsening symptoms did not have a negative impact on his psychosocial functioning or work performance. Finally, the veteran continued to work up until November 4, 1994, by his statements. As of the date of the veteran's December 1993 claim, the regulatory criteria to support such a total rating provided that the attitudes of all contacts except the most intimate needed to be so adversely affected as to result in virtual isolation in the community; or there needed to be totally incapacitating psychoneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; or the veteran needed to be demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). During the appellate period at issue, the veteran was not required to meet all three of the criteria in order to warrant the 100 percent rating. Johnson v. Brown, 7 Vet. App. 95, 96 (1994). In resolving all reasonable doubt in favor of the veteran, the Board finds that the veteran met the 100 percent rating criteria on the day after his last date of employment, or November 5, 1994. This date represents the earliest possible date where it was factually ascertainable that the veteran's disability had increased to meet the criteria for a 100 percent rating. Prior to that date, the veteran had been gainfully employed and receiving periodic outpatient treatment for his PTSD, the appellant was not virtually isolated in his community, and the disorder was not manifested by totally incapacitating symptoms. Subsequent to November 5, 1994, he began a series of hospitalizations for treatment of his PTSD. He was hospitalized from what appears to be from November 5, 1994, to November 9, 1994, and then again from November 17, 1994, to January 10, 1995. He did not return to his employer of over 20 years. As discussed previously, because the increase in disability was not clinically manifested prior to November 5, 1994, in light of the Court's holding in Harper, there is no legal basis for establishing an earlier effective date based on the date of the receipt of the claim. Accordingly, the veteran is entitled to an earlier effective date of November 5, 1994, for the assignment of his 100 percent rating for PTSD. The Board notes that the veteran's representative has argued that application of 38 C.F.R. § 3.400(q)(1)(i) (1999), would serve to establish the date of claim as the effective date in this case. This argument fails to consider that the cited regulatory provision applies to cases involving new and material evidence under 38 C.F.R. § 3.156. The provision does not relate to increased rating claims. Finally, the Board notes that while the regulations used to evaluate psychiatric disabilities were amended effective November 7, 1996, this issue involves establishing an earlier effective date which precedes the effective date of the regulatory change. As the revised regulations in this case do not allow for their retroactive application prior to November 7, 1996, the Board cannot apply the new provisions prior to that date. Rhodan v. West, 12 Vet. App. 55, 57 (1998). II. Entitlement to TDIU A total disability rating based on individual employability for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(a). However, when a veteran is in receipt of a 100 percent schedular rating he is not eligible for a TDIU. Green v. West, 11 Vet. App. 472, 476 (1998). This holding is binding unless there is a possibility of establishing a possible earlier effective date for the grant of TDIU. The veteran filed an informal claim for a total rating based on individual unemployability in August 1995 which, of course, postdates the effective date for the schedular award of a 100 percent rating for PTSD. Further, a review of the evidence as outlined above shows that the veteran was employed in a supervisory position of substantially gainful employment with the same employer for 20 years until November 4, 1994. There is no evidence of record to show that the veteran could establish a total disability rating due to individual unemployability prior to November 5, 1994. While the Board acknowledges the representative's October 1995 report that the veteran was in receipt of Social Security Administration (SSA) benefits based upon his service- connected PTSD, and while such records are not associated with the claims file, for the reasons previously discussed, there is no basis to establish an earlier date based on unemployability prior to November 5, 1994. Simply put, the appellant was substantially gainfully employed until November 4, 1994. Moreover, it must be noted that the veteran has not presented any evidence that the effective date of his Social Security benefit preceded November 5, 1994. Accordingly, the Board does not find a need to remand the case to obtain those records. Simply put, "the 'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim. In connection with the search for documents, this duty is limited to specifically identified documents that, by their description, would be facially relevant and material to the claim." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). The veteran's claim for entitlement to TDIU prior to November 5, 1994, is denied. ORDER An effective date of November 5, 1994, for the assignment of a 100 percent disability rating for PTSD is granted subject to the laws and regulations governing the award of monetary benefits. Entitlement to a total rating based on individual unemployability by reason of service-connected disabilities is denied. DEREK R. BROWN Member, Board of Veterans' Appeals