BVA9505166 DOCKET NO. 91-44 315 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Medical and Regional Office Center in Togus, Maine THE ISSUES 1. Entitlement to an effective date earlier than July 12, 1989, for an award of service connection for post-traumatic stress disorder. 2. Entitlement to an effective date earlier than July 12, 1989, for an award of a total rating based on unemployability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael P. Vander Meer, Associate Counsel INTRODUCTION The veteran served on active duty from September 1959 to September 1963, from April 1964 to April 1971, and from June 1971 to December 1979. This appeal arises from rating decisions of the Department of Veterans Affairs (VA) Medical and Regional Office Center (M&ROC) in Togus, Maine. This case was last before the Board of Veterans' Appeals (Board) in December 1993, at which time it was remanded for further development. In response to the requested development, a Statement of the Case was issued in October 1994 pertaining to the issue of entitlement to an effective date earlier than July 12, 1989, for an award of service connection for post-traumatic stress disorder, and a substantive appeal relative to such issue was received the same month. Accordingly, such issue, the first issue listed on the title page, is included for consideration in the current appeal. The appeal was returned to the Board in January 1995 and redocketed at the Board in February 1995. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL With respect to his claim of entitlement to an effective date earlier than July 12, 1989, for an award of service connection for post-traumatic stress disorder, the veteran asserts that he has suffered with such condition since being hospitalized during service in the aftermath of a suicide attempt approximately three months prior to his discharge from service. He states that he should have been diagnosed with post-traumatic stress disorder at that time due to his experiences in Vietnam and contends, in essence, that he is entitled to service connection for such benefit from the day of his discharge from service. He further indicates that his mental state at the time of his discharge from service was such that he was not competent due to post-traumatic stress disorder to know what disability he should file a claim for. His representative joins in his contentions and suggests, in the alternative, that the proper effective date for the grant of service connection for post-traumatic stress disorder may be May 30, 1989, the earliest date on which reference is made to such disorder in the clinical evidence. Concerning his claim of entitlement to an effective date earlier than July 12, 1989, for an award of a total rating based on unemployability, the veteran asserts that the proper effective date for such benefit should be the date of his discharge from service, inasmuch as "the conditions for" a grant of such benefit have been satisfied since that time. His representative joins in his contentions and suggests, in the alternative, that the proper effective date for the grant of a total rating based on unemployability may be May 30, 1989, the date of the veteran's admission to a VA facility from which he was noted to be unemployable at the time of his discharge. 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 12, 1989, for an award of service connection for post-traumatic stress disorder as well as an award of a total rating based on unemployability. FINDINGS OF FACT 1. Following receipt of the veteran's original claim for service connection for post-traumatic stress disorder on July 12, 1989, the presence of such disorder was initially clinically confirmed on VA examination in June 1990. 2. There is no evidence demonstrating that the veteran was unemployable due to service-connected disabilities prior to July 12, 1989. CONCLUSIONS OF LAW 1. The requirements for an effective date for an award of service connection for post-traumatic stress disorder prior to July 12, 1989, have not been met. 38 U.S.C.A. §§ 5110, 5107 (West 1991); 38 C.F.R. § 3.400 (1994). 2. The requirements for an effective date for an award of a total rating based on unemployability prior to July 12, 1989, have not been met. 38 U.S.C.A. §§ 5110, 5107 (West 1991); 38 C.F.R. § 3.400 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's earlier effective date claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that these claims are plausible. The Board is also satisfied that all relevant facts, with respect to each claim, 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, Post-Traumatic Stress Disorder Under the law, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In asserting entitlement to an effective date for an award of service connection for post-traumatic stress disorder prior to July 12, 1989, the veteran contends 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 from being able to file a claim for service connection for such disability at that time, is the day of 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 post- traumatic stress disorder from being aware as to what disability he should file a claim for, 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, it is contended on the veteran's behalf that the proper effective date for the grant of service connection for post-traumatic stress disorder may be May 30, 1989, the earliest date on which reference is made to such disorder in the clinical evidence. With respect to such date, the Board is aware that the veteran was admitted to a VA facility on that date (six days after the veteran was noted in the course of VA outpatient treatment to have been tearful with depressed affect, possibly secondary to depression or "PTSD"), in response to depression of several months' duration as well as memory loss. The hospitalization report reflects that the veteran was, at that time, noted to have had a history of serious stressors related to exposure to a great deal of death in Vietnam. After a treatment plan to deal with the veteran's psychiatric problem, identified as depression and post-traumatic stress disorder, was initiated, the veteran signed out of such facility against medical advice. The final diagnoses at the time of the veteran's discharge on June 19, 1989, included post-traumatic stress disorder, unimproved. Thereafter, the veteran underwent VA psychological testing from June 19 to June 28, 1989. Following such testing, which included the Minnesota Multiphasic Personality Inventory, the recommended Axis I diagnosis was generalized anxiety disorder. On July 12, 1989, correspondence was received from the veteran in which he asserted claims including a claim of entitlement to service connection for "PTSD." On VA examination in June 1990, at which time the veteran was noted to have experienced severe symptoms of post-traumatic stress disorder ever since his Vietnam experiences including significant exposure to combat, the Axis I diagnosis was post-traumatic stress disorder, chronic and severe. Service connection for such disability, effective from July 12, 1989, the date of receipt of the veteran's initial claim for service connection for post-traumatic stress disorder, was granted in a rating decision entered in October 1990. Since the initial assessments relative to the veteran's having post- traumatic stress disorder, made on VA outpatient treatment in May 1989 as well as in the course of the veteran's VA hospitalization through mid-June 1989, were not confirmed on subsequent VA psychological testing administered through late June 1989, and inasmuch as post-traumatic stress disorder was not clinically confirmed until June 1990, the date of receipt of the veteran's original claim for service connection for such disability, July 12, 1989, is, pursuant to the law and regulations set forth above, the proper effective date for an award of service connection for such disorder. Accordingly, entitlement to an effective date for service connection for post-traumatic stress disorder prior to July 12, 1989, is not established. 38 U.S.C.A. §§ 5110, 5107; 38 C.F.R. § 3.400. II. Earlier Effective Date, Total Rating Based on Unemployability VA will grant a total rating for compensation purposes based on unemployability where the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16 (1994). In Servello v. Derwinski, 3 Vet.App. 196, 198 (1992), the United States Court of Veterans Appeals (Court) addressed the issue of entitlement to an earlier effective date in a total rating claim and pointed out that the applicable statutory and regulatory provisions, thoroughly construed, require that the Board look to all communications in the file that may be interpreted as applications or claims, formal and informal, for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which", within the year prior to the claim, the increase in disability was ascertainable. 38 U.S.C.A. § 5110(b)(2); see 38 C.F.R. §§ 3.400(o)(2), 3.155(a); Quarles v. Derwinski, 3 Vet.App. 129, 134 (1992). The Court also pointed out that, under 38 C.F.R. § 3.155(a), an informal claim may, in some circumstances, be considered the date of a claim, and there is no requirement that an informal claim specifically identify the benefit sought. Moreover, 38 C.F.R. § 3.157(b) provides that the date of an outpatient or hospital examination or admission to a VA or uniformed service hospital will be accepted as the date of receipt of an informal claim for increased benefits, or an informal claim to reopen, with respect to disabilities for which service connection has been granted. This section does not require the veteran to identify the report as a claim or to identify the benefits sought. In asserting entitlement to an effective date earlier than July 12, 1989, for an award of a total rating based on unemployability, the veteran asserts that the proper effective date for such benefit should be the date of his discharge from service, inasmuch as "the conditions for" a grant of such benefit have been satisfied since that time. In this regard, however, the Board would point out that, ignoring the percentage evaluations assigned the veteran's service-connected disabilities beginning with an initial post-service rating decision entered in August 1980, the record contains completed VA Forms 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in May 1985, July 1985 and September 1985, which reflect, collectively, that the veteran was employed through at least late 1984 as a laborer and/or hotel desk clerk. Thereafter, a VA outpatient treatment report dated in July 1986 reflects that the veteran was then working, in an unspecified capacity, on a "full time" basis. While a Board decision dated in July 1987 denied entitlement to a total rating based on unemployability, the Board would point out that, notwithstanding the July 1987 Board denial, any repeat claim for a total rating based on unemployability is viewed as a new claim which is not subject to the requirement under 38 U.S.C.A. § 5108 (West 1991) that new and material evidence be submitted. See Suttmann v. Brown, 5 Vet.App. 127, 136-137 (1993). With respect to the period dating from the July 1987 Board denial to July 12, 1989, the effective date currently assigned for the veteran's total rating based on unemployability, the record does not reflect any documentation conceivably constituting a formal or informal claim (with the exception, addressed in greater detail below, of a report of VA hospitalization to which the veteran was admitted on May 30, 1989, and from which he was noted to be unemployable at the time of his discharge), for a total rating based on unemployability within the purview of 38 C.F.R. §§ 3.1(p), 3.155(a) or 3.157(b)(1) (1993). In a rating decision entered in October 1990, the M&ROC awarded a total rating based on unemployability, effective from July 12, 1989, the date of receipt of the veteran's reopened claim for a variety of benefits, in response to which the veteran was ultimately accorded the requisite percentage evaluations for his service-connected disabilities on which the October 1990 grant of a total rating was predicated. Under the law, in the context of the current issue on appeal, the effective date of an award of a total rating based on unemployability is the earliest date as of which it is factually ascertainable that such benefit was warranted if a claim is received within one year from such date, otherwise, date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o). As noted above, the record contains the report of the veteran's May 30, 1989, admission to a VA facility in response to depression of several months' duration as well as memory loss. The final diagnoses on the veteran's discharge approximately three weeks later, at which time he was, in addition, noted to be "[d]isabled, unemployable," were post-traumatic stress disorder, hypertension and sensory loss in the toes. However, since the veteran's discharge status as unemployable was not itself specifically attributed to service-connected disabilities, precluding, in any event, any characterization of the hospitalization report as an informal claim for a total rating pursuant to 38 C.F.R. § 3.157(b)(1), and even ignoring the consideration that service connection was not in effect for the veteran's post-traumatic stress disorder at that time, the Board must point out that service connection was not in effect for sensory loss in the veteran's toes. Given the foregoing consideration, and inasmuch as the narrative in the hospitalization report itself makes no reference to the veteran's ability or inability to obtain or maintain any gainful employment consistent with his education and occupational experience, the foregoing report affords no basis to factually ascertain that the veteran's service-connected disabilities alone prevented him from obtaining or keeping a job. In light of the foregoing observation, and inasmuch as the record is otherwise negative for any evidence bearing on an inability to work, owing solely to the veteran's service-connected disabilities, dated prior to the currently assigned effective date for the veteran's award of a total rating based on unemployability, July 12, 1989, entitlement to an effective date for such benefit prior to July 12, 1989, is not established. 38 U.S.C.A. §§ 5110, 5107; 38 C.F.R. § 3.400(o). ORDER An effective date earlier than July 12, 1989, for an award of service connection for post-traumatic stress disorder is denied. An effective date earlier than July 12, 1989, for an award of a total rating based on unemployability is denied. F. JUDGE FLOWERS 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.