Citation Nr: 0000823 Decision Date: 01/11/00 Archive Date: 01/27/00 DOCKET NO. 98-05 279A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUES 1. Entitlement to an effective date earlier than January 19, 1995, for a 100 percent rating for post-traumatic stress disorder (PTSD). 2. Entitlement to an increased rating in excess of 30 percent for blindness of the right eye due to shell fragment wound. 3. Entitlement to an increased rating in excess of 10 percent for metallic foreign body of the right ethmoid with sinus headaches. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active military service from May 1967 to May 1969. His awards and decorations include the Purple Heart Medal. This appeal arises from a March 1997 rating decision, in which the RO evaluated the veteran's PTSD as 100 percent disabling, effective January 19, 1995, and thereafter the veteran disagreed with the assigned effective date. In May 1996, the veteran indicated that he wanted to pursue a claim of entitlement to a temporary total rating under 38 C.F.R. § 4.29 for his period of hospitalization for PTSD dated from June to August 1996 and in September 1996 the veteran submitted an application for entitlement to a total rating based on individual unemployability. Because the veteran's PTSD disability has been rated as 100 percent, effective January 19, 1995, the Board of Veterans' Appeals (Board) notes that the foregoing claims have been rendered moot, and as such, additional development in this regard is not warranted. In January 1998, the veteran argued that prior decisions dated from April 1990 to January 1995 had evidence available showing that an increased rating in excess of 30 percent was warranted. The veteran also stated that the ratings were in error for denying a higher evaluation. On substantive appeal in February 1998, however, the veteran stated that he was only appealing the change of dates from January 19, 1995, to April 17, 1990 claim. Given the veteran's February 1998 statement and the lack of specificity of error alleged in the January 1998 statement, the Board finds that the veteran has not raised a claim of clear and unmistakable error. Thus, no action in this regard is warranted. See Russell v. Principi, 3 Vet. App. 310 (1992) (en banc); compare with Johnston v. Brown, 10 Vet. App. 80 (1997). The issues of entitlement to an increased rating in excess of 30 percent for blindness of the right eye due to shell fragment wound and increased rating in excess of 10 percent for metallic foreign body of the right ethmoid with sinus headaches are addressed in the remand portion of the decision. FINDINGS OF FACT 1. The unappealed July 1991 rating action granting service- connection for PTSD, rated 30 percent is a final determination. 2. On January 19, 1995, the RO received the veteran's informal claim for an increased evaluation for PTSD. 3. The veteran last worked in June 1996 and in November 1996 a VA examiner found him unable to work due to PTSD, as the GAF score was 35. 4. It is not factually ascertainable that the veteran's increase in disability occurred within one year prior to the January 19, 1995, claim. CONCLUSION OF LAW The criteria for an effective date earlier than January 19, 1995, for a 100 percent rating for PTSD have not been met. 38 U.S.C.A. § 5110 (West 1991; 38 C.F.R. § 3.400(o) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Criteria A finally adjudicated claim is an application, formal or informal, which had been allowed or disallowed by the RO, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160(d) (1999). A claim for increase is any application for an increase in rate of a benefit being paid under a current award. 38 C.F.R. § 3.160(f) (1999). The effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for 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(a); 38 C.F.R. § 3.400. The effective date for a claim for increase in disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year for such date, otherwise the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). The effective date for a grant based on a reopened claim or new and material evidence is the date of receipt of the claim or date entitlement arose. 38 C.F.R. § 3.400(r). The rating criteria for psychiatric disorders changed effective November 7, 1996. When the Secretary adopted the revised mental disorder rating schedule and published it in the Federal Register, the publication clearly stated an effective date of November 7, 1996. Because the revised regulations expressly stated an effective date and contained no provision for retroactive applicability, it is evident that the Secretary intended to apply those regulations only as of the effective date. See Allin v. Brown, 6 Vet. App. 207, 211 (1994); see also Rhodan v. West, 12 Vet. App. 55 (1998). Accordingly, the claimant as a matter of law can not receive an rating on the basis of the revised criteria prior to November 7, 1996, on the facts of this case. Prior to November 7, 1996, the regulations provided that in rating a psychoneurotic disorder, when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community, and 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 result in profound retreat from mature behavior, with demonstrable inability to obtain or retain employment, a 100 percent rating was for assignment. Where the ability to establish and maintain effective or favorable relationships with people was severely impaired, and the psychoneurotic symptoms are of such severity and persistence that there was severe impairment in the ability to obtain or retain employment, a 70 percent rating was warranted. Where the ability to establish and maintain effective or favorable relationships with people was considerably impaired, and by reason of psychoneurotic symptoms the reliability, flexibility and efficiency levels were so reduced as to result in considerable industrial impairment, a 50 percent rating was warranted. Where there is definite impairment in the ability to establish or maintain effective and wholesome relationships with people, and the psychoneurotic symptoms result in such reduction in initiative, flexibility, efficiency and reliability levels as to produce definite industrial impairment, a 30 percent evaluation was in order. 38 C.F.R. § 4.132, Diagnostic Code 9411 (1996). In Hood v. Brown, 4 Vet. App. 301 (1993), the United States Court of Appeals for Veterans Claims (then known as the United States Court of Veterans Appeals) (hereinafter referred to as the Court) stated that the term "definite" in 38 C.F.R. § 4.132 was "qualitative" in character, whereas the other terms were "quantitative" in character, and invited the Board to "construe" the term "definite" in a manner that would quantify the degree of impairment for purposes of meeting the statutory requirement that the Board articulate "reasons or bases" for its decision 38 U.S.C.A. § 7104(d)(1) (West 1991). In a precedent opinion, dated November 9, 1993, the General Counsel of the VA concluded that "definite" is to be construed as "distinct, unambiguous, and moderately large in degree." It represents a degree of social and industrial inadaptability that is "more than moderate but less than rather large." O.G.C. Prec. 9-93 (Nov. 9, 1993). The Board is bound by this interpretation of the term "definite." 38 U.S.C.A. § 7104(c). A GAF of 50 (actually the range of scores from 41 to 50) is for "[s]erious symptoms (e.g. suicidal ideation, server obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job)." Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 1994), cited in Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score of 55 to 60 (actually 51 to 60) is for "moderate difficulty in social, occupational, or school functioning." Diagnostic and Statistical Manual for Mental Disorders, 32 4th ed. (1994), as cited in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). Factual Background Review of the evidence shows that the veteran's original claim for disability benefits was received in May 1969, and at that time, there was no reference to a psychiatric disorder. The evidence also shows that no reference to a psychiatric disorder was made from 1970 to 1979. In the latter part of the 1980's, the veteran received treatment for family and job problems and was noted to have PTSD symptoms. The veteran filed a claim for entitlement to disability benefits to include PTSD in April 1990. VA psychiatric examination in April 1991 revealed PTSD, mild to moderately severe symptomatology depending on the intensity of stimuli. In April the veteran reported that he completed the eight grade, received his GED in service, and attended Hartnell College after service, majoring in business. A rating action in July 1991 granted service connection for PTSD and assigned a 30 percent evaluation, from the date of claim in April 1990. The veteran was notified of this award and his appellate rights later that same month. In July 1992 the veteran requested consideration for an increase in his sinus disorder, and claimed Agent Orange exposure. He did not appeal the July 1991 grant for PTSD, and the determination became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.302 (1999). On January 19, 1995, the RO received the veteran's request for an increased rating for his service-connected disabilities, including PTSD. At that time, the veteran reported that his quality of life had been reduced and his stress had increased. Shootings in his neighborhood had increased his anxiety, too. His request did not include any medical documentation or reference to ongoing psychiatric treatment. Also in January 1995, the veteran was invited by the RO to submit evidence of treatment. The veteran was provided VA psychiatric examination on March 8, 1995. It was noted that he was currently on leave from the United States Post Office, since February 22, 1995, for facial and neck surgery, and was due back at work on March 15, 1995. He reported having some problems at work due to his service-connected visual disability which resulted in him working slower than others worked. It also was recorded that he had been going to a Veterans Center, although he was not going recently due to drive-by shootings in his neighborhood. The veteran then stated that shootings had decreased in the last year or two, and he had seen a doctor last week and would see the doctor again in the near future. When asked what symptoms he related to service, the veteran mentioned isolation, nightmares, and flashbacks of his experiences in Vietnam. The diagnosis was PTSD, moderately severe. In March 1996 the veteran expressed disagreement with the assigned rating and indicated that he was currently hospitalized at a VA facility for PTSD. While hospitalized in March 1996 the veteran reported that he wanted to "just die" because he was tired of harassment at work. He stated that he had been on medication but had stopped his intake one month before because he wanted to "give up." A background on the veteran was given. The examiner noted that the veteran's behavior and self-reported symptoms, including his delusional thoughts, appeared consistent with a diagnosis of a personality disorder with paranoid features. Also his tendency to view himself as a victim often resulted in a hypersensitivity and perhaps exaggeration of injustice. It was also possible that his exaggeration or over-report of symptoms were for secondary gain (disability or avoidance of work). The Axis I diagnoses were PTSD, major depressive disorder by history, and polysubstance dependence in full-sustained remission. The Axis II diagnosis was personality disorder not otherwise specified with paranoid features. His Global Assessment Functioning (GAF) was 50 at admission, and 60 at discharge. In May 1996, the veteran reported that he would start another period of hospitalization from June to August 1996. The veteran was hospitalized in June 1996 for a 45-day program for evaluation and treatment of PTSD. It was recorded that he had completed the eighth grade and had no further education. Although the veteran still felt depressed he was not as bad as when previously hospitalized. His anxiety symptoms were said to be triggered by Vietnam reminders. VA psychological evaluation of the veteran on July 9, 1996, resulted in diagnoses of PTSD, and major depression, moderate, recurrent. No other anxiety disorder was present. The discharge diagnoses in mid-August 1996 were PTSD and major depression in partial remission. The veteran filed a claim for a total rating based on unemployability in September 1996. In the report, he reported last working in June 1996, and that he expected to receive disability retirement. He reported an 8th grade education, completion of a GED in service, and attendance at Hartnell College after service with no earned degree. He made reference to a psychiatric evaluation conducted on July 9, 1996, with a GAF score of 45 to 48. Information from the veteran's employer in November 1996 showing pending disability retirement, and that the veteran last worked in June 1996 is also of record. The veteran was again provided VA psychiatric examination in November 1996. A background on the veteran was given. He reported that since August 1996 he had not worked and spent most of his time attending medical appointments including individual therapy, group therapy, and psychiatric appointment. Otherwise, he was isolated at home. The diagnostic conclusions were PTSD with paranoid features, and recurrent major depression. A GAF score of 35 (inability to function both socially and vocationally) was given. It was opined that the veteran was not able to engage in employment at this time secondary to his symptoms of PTSD. The basis for the GAF score of 35 was given. By a March 1997 rating action, a 100 percent evaluation for PTSD was assigned, effective January 19, 1995. In January 1998, the veteran reported that he disagreed with the effective date for the total rating for PTSD. He indicated that when rated 30 percent in April 1990, he attempted to appeal the evaluation but was informed that he did not file a timely appeal within one year of the date of the notification letter. The veteran explained that he did not understand this. He reported being under clinical treatment from the VA since 1986, and that he was due a higher rating from April 17, 1990, to January 19, 1995. The veteran, in his February 1998 substantive appeal, submitted evidence he considered appropriate to this claim. This material included records of medication dating back to 1968; VA clinic records from 1987, 1988, and 1989; an article on appellate rights; a copy of a photograph of his eye; annotated records associated with his military service, including an article on enemy tunneling; records indicating problems associated with his employment; and a copy of the November 1996 examination. The veteran also included several hand-written statements. In one document he stated that he had applied for PTSD assistance April 17, 1970, but he never received an answer. With no action taken by the VA and due to his mental illness he forgot about it. In a separate statement he reported that the correct date should be April 19, 1990, and that when he applied for help on April 17, 1970, no one was there to help him. The veteran, in a certified statement dated August 15, 1998, reported that he did attempt to initiate an appeal to the July 1991 rating decision. He wrote that he called the RO in San Francisco within days of the July 1991 notice, and told the counselor of his discontent. He also reported that he had a 4th grade education and stated "I don't understand all of the legal factors, however, the phone contact should have been recorded. It is not my fault in this instance for the lack of assistance received." Analysis It is not entirely clear whether the veteran is seeking an April 17, 1970, or April 17, 1990, effective date for the assignment of a total rating for the PTSD. Based on the evidence of record, which does not reflect any communication from the veteran in April 1970 that can be construed as a claim for a psychiatric disorder, or any other disability claim, the Board can only presume that the veteran has inadvertently confused 1970 with 1990. In regard to the April 17, 1990, date, this was the date the veteran's original claim for service-connection for PTSD was received. When service connection was granted for PTSD, by rating action in July 1991, the effective date for the award was the date of the veteran's claim, April 17, 1990. The veteran did not appeal that determination and it became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.302. The veteran was provided with information concerning the rating action, and his appellate rights in July 1991, and there is nothing in the record to show that he did not receive that information. While the Board does not dispute the veteran's recollection of a phone call to the San Francisco RO in July 1991, that does not change the fact that he was provided with appropriate information concerning his appellate rights, in writing, and that the record shows that he did not file an appeal. Consequently, the Board cannot find that the veteran filed a timely appeal, was misled in any manner, or that any advice given would have or should have deterred him from filing a claim. To the contrary, if the veteran had followed the written instructions sent to him by the RO, he would have preserved his right to appeal. Mitscher v. West, No. 98-502 (U.S. Vet. App. Oct. 15, 1999). Given the foregoing and, as discussed in the INTRODUCTION section, the absence of any alleged clear and unmistakable error of the July 1991 rating action, the Board finds that the July 1991 decision is a final adjudicative action, and the veteran's January 19, 1995, letter was a claim for increase. An effective date cannot be awarded prior to the date of a final disallowed claim. Perry v. West, 12 Vet. App. 365 (1999); Lalonde v. West, 12 Vet. App. 377 (1999). As previously noted, generally, the effective date for a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. However, the regulations also provide that an effective date for a claim for increase in disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year of such date, otherwise the date of receipt of claim. In this case, the date it was factually ascertainable that an increase in the service-connected psychiatric disorder occurred was after the date of receipt of the January 19, 1995, claim. The available clinic records for one-year period prior to the January 1995 claim do not show an increase in the psychiatric disorder. In fact, noteworthy is the March 1995 psychiatric examination which revealed only moderately severe PTSD. A moderately severe psychiatric disorder does not support a 100 percent evaluation. See generally 38 C.F.R. § 4.132, Diagnostic Code 9411. The Board also notes that the veteran worked until June 1996 and even if it were determined that his hospitalization in March 1996 was the beginning of his inability to function socially and vocationally, the March 1996 date is long after the veteran's claim in January 1995. The mere fact that the veteran had PTSD, and received some treatment for the disorder over the years does not entitle him to an effective date prior to the date it was determined that he was totally disabled, or the date of his claim, whichever is the later. The November 5, 1996, VA examination was the date that it was medically determined that the veteran was totally disabled due to his service-connected psychiatric disorder. He has not submitted any medical evidence showing that he was totally disabled prior to that date or the date of his claim in 1995, and the veteran is not shown to possess the medical expertise to determine the extent of his various medical symptoms or shown to be medically qualified to render an opinion as to the degree of his disability. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Since the increase in disability was not factually ascertainable prior to the date of the claim, the effective date is controlled by the provisions of 38 C.F.R. § 4.300(o)(1). Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, entitlement to an earlier effective date prior to January 19, 1995, is prohibited. Given the above fundamental facts, the evidence is against the claim. Id. In regard to the veteran's August 1998 statement that he only has a 4th grade education and does not understand all of the legal factors, the Board notes that the record shows that the veteran is not illiterate, that he worked as a postal clerk for over 20 years, and that he has more than a 4th grade education. As previously noted, subsequent to the July 1991 RO determination, the veteran was adequately apprised of his appellate rights. He, however, did not file a timely appeal. Thus, the date of receipt of his increased rating claim is the proper effective date. In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Court has held that claims for earlier effective dates should be denied on this basis. Shields v. Brown, 8 Vet. App. 346, 351 (1995). Accordingly, the veteran's claim is denied, as it lacks entitlement under the law. 38 U.S.C.A. § 5110(a); Sabonis and Shields, both supra; 38 C.F.R. § 3.400(0)(1). ORDER Entitlement to an effective date earlier than January 19, 1995, for a 100 percent rating for post-traumatic stress disorder is denied. REMAND In February 1996, the RO denied entitlement to an increased rating in excess of 30 percent for blindness of the right eye due to shell fragment wound and entitlement to an increased rating in excess of 10 percent for metallic foreign body of the right ethmoid with sinus headaches. In May 1996, the veteran disagreed with those assigned evaluations. Given the foregoing, in this respect the Board finds that the veteran has filed timely notice of disagreement with the February 1996 rating determination. Because the veteran has submitted communication which is construed as a timely notice of disagreement with the RO determination dated in February 1996, see 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.201 (1999), the Board finds that a statement of the case with respect to the claims should be issued. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (1999); see also Garlejo v. Brown, 10 Vet. App. 229 (1997). In order to extend to the veteran every equitable consideration and to ensure that his due process rights are fulfilled, this case is REMANDED for the following: Regarding entitlement to an increased rating in excess of 30 percent for blindness of the right eye due to shell fragment wound and entitlement to an increased rating in excess of 10 percent for metallic foreign body of the right ethmoid with sinus headaches, the RO should review all the relevant evidence submitted and, if appropriate, accomplish any additional development deemed necessary. Thereafter, the RO should readjudicate the claims. If the claims remain in a denied status, the RO should issue a statement of the case to the veteran and his representative and advise them of the applicable time in which a substantive appeal may be filed. Thereafter, if an appeal has been perfected, the case should be returned to the Board. The case should then be returned to the Board, if in order, after compliance with customary appellate procedures. No action is required of the veteran until he is so informed. The Board intimates no opinion as to the final outcome of this case, pending completion of the requested development. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. C. Crawford Acting Member, Board of Veterans' Appeals