Citation Nr: 0002173 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 95-15 208 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUE Entitlement to an effective date earlier than April 25, 1995, for the assignment of a total rating for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard V. Chamberlain, Counsel INTRODUCTION The veteran had active service from November 1969 to February 1972. This appeal came to the Board of Veterans' Appeals (Board) from March 1995 and later RO rating decisions that increased the evaluation for PTSD from 30 to 70 percent, effective from April 25, 1995, and denied a total rating for compensation purposes based on unemployability. In March 1997, the Board remanded the case to the RO for additional action. The issues for appellate consideration at the time of the March 1997 Board remand were entitlement to an increased evaluation for PTSD (rated 70 percent), entitlement to a total rating for compensation purposes based on unemployability, and entitlement to an effective date prior to April 25, 1995, for the assignment of an increased evaluation for PTSD. A May 1999 RO rating decision increased the evaluation for PTSD from 70 to 100 percent, effective from April 25, 1995. Since the maximum schedular evaluation has been granted for the PTSD, the issue of entitlement to an increased evaluation for this disorder is no longer for appellate consideration. AB v. Brown, 6 Vet. App. 35, (1993). In view of the grant of a total rating for the PTSD, the Board will not consider the issue of entitlement to a total rating for compensation purposes based on individual unemployability. VAOPGCPREC 6-99. FINDINGS OF FACT 1. A July 1993 RO rating decision denied an increased evaluation for PTSD then rated 30 percent disabling. 2. The veteran was notified of the July 1993 RO rating decision in July 1993; on March 11, 1994, he submitted a notice of disagreement with this determination and other correspondence; the RO sent him a statement of the case in August 1994 concerning the issue of entitlement to an increased evaluation for PTSD; his substantive appeal was received on April 25, 1995. 3. There was no correspondence received from the veteran within 60 days of the August 1994 statement of the case. 4. The veteran's substantive appeal received on April 25, 1995, was considered a claim for an increased evaluation for PTSD. 5. Correspondence submitted with the notice of disagreement received on March 11, 1994, evinces a belief by the veteran that he is entitled to a higher rating for PTSD and constitutes an informal claim for an increased evaluation for this disorder; evidence received in conjunction with this informal claim supports a total rating for PTSD since then. 6. There was no correspondence received from the veteran from the time of the July 1993 RO rating decision, denying an increased evaluation for PTSD (rated 30 percent), to the time of receipt of the informal claim for an increased evaluation for PTSD on March 11, 1994, showing an intent to apply for an increased evaluation for this disorder; nor does the medical evidence of the veteran's psychiatric treatment and evaluations within one year prior to the March 11, 1994 informal claim when considered with the evidence received in conjunction with this claim support the assignment of a total rating for PTSD prior to this date. CONCLUSIONS OF LAW 1. The July 1993 RO rating decision, denying an increased evaluation for PTSD then rated 30 percent, is final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (1999). 2. The criteria for an effective date of March 11, 1994, for the total rating for PTSD are met. 38 U.S.C.A. §§ 1155, 5110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.155, 3.160, 3.400, 4.7, 4.41, 4.132, Code 9411, effective prior to November 7, 1996, 4.130, Code 9411, effective as of November 7, 1996. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claim for an effective date earlier than April 25, 1995, for the assignment of a total rating for PTSD is well grounded, meaning it is plausible. The Board finds that all relevant evidence has been obtained with regard to the claim and that no further assistance to the appellant is required to comply with VA's duty to assist him. 38 U.S.C.A. § 5107(a) (West 1991). The salient procedural history of the veteran's claim for an earlier effective date for the total rating for PTSD may be briefly summarized. A July 1993 RO rating decision denied an increased evaluation for PTSD then rated 30 percent disabling. In a July 1993 letter, the RO notified the veteran of the determination in the July 1993 RO rating decision. On March 11, 1994, the veteran submitted a notice of disagreement with the denial of an increased evaluation for PTSD and other correspondence. In August 1994, the RO sent him a statement of the case concerning the issue of entitlement to a higher rating for PTSD with instructions to submit a VA Form 9 or substantive appeal within 60 days. On April 25, 1995, the veteran's VA Form 9 was received. A review of the appellate record shows that no correspondence was received from the veteran within 60 days of the August 1994 statement of the case evincing an intent to appeal the issue of entitlement to a higher evaluation for PTSD. The substantive appeal received on April 25, 1995, was not timely because it was not received within 60 days of mailing of the statement of the case in August 1994 or within one year from the date of mailing of the notification of the July 1993 RO rating decision in the letter of July 1993. An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Correspondence indicating an intention to appeal an item in a statement of the case will be construed as a substantive appeal. 38 C.F.R. § 20.202. The notice of disagreement shall be filed within one year from the date of mailing of notification of the initial review and determination. The substantive appeal shall be filed within 60 days from the date of mailing of the statement of the case or within the remainder of the one-year period from the date of the notification of the initial review and determination being appealed. 38 U.S.C.A. § 7105(b)(1) and (d)(3); 38 C.F.R. § 20.302(b). If a timely appeal is not filed with a determination, the determination becomes final. 38 U.S.C.A. § 7105(c). Since the veteran did not submit a timely appeal with the July 1993 RO rating decision, denying an increased evaluation for PTSD, this decision is final. 38 C.F.R. § 20.1103. The veteran's substantive appeal received on April 25, 1995, was considered an increased rating claim for PTSD. 38 C.F.R. §§ 3.155, 3.160(f). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability has occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o); Harper v. Brown, 10 Vet. App. 125 (1997). In general, disability evaluations are assigned by applying a schedule of ratings (rating schedule) which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. § 4.41, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Also, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A 10 percent evaluation is warranted for PTSD when there is emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent evaluation requires definite impairment in the ability to establish or maintain effective and wholesome relationships with people and psychoneurotic symptoms resulting in such reductions in initiative, flexibility, efficiency, and reliability levels as to produce definite industrial impairment. A 50 percent rating requires that the ability to establish or maintain effective or favorable relationships with people be considerably impaired and that reliability, flexibility, and efficiency levels be so reduced by reason of psychoneurotic symptoms as to result in considerable industrial impairment. A 70 percent evaluation is warranted where the ability to establish or maintain effective or favorable relationships with people is severely impaired and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain and retain employment. A 100 percent evaluation requires that attitudes of all contacts except the most intimate be so adversely affected as to result in virtual isolation in the community and there be totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior. The veteran must be demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, diagnostic code 9411, effective prior to Nov. 7, 1996. The regulations for the evaluation of mental disorders were revised, effective from November 7, 1996. When regulations are changed during the course of the veteran's appeal, the criteria that is to the advantage of the veteran should be applied. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Under the revised general rating formula for the evaluation of mental disorders, 38 C.F.R. § 4.130, Code 9411, effective November 7, 1996, PTSD will be rated as follows: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.-100 percent Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.-70 percent Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. - 50 percent Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).-30 percent A review of the correspondence received with the notice of disagreement received on March 11, 1994, indicates that the veteran believed that his PTSD was more severe than 30 percent and that this disorder prevented him from obtaining or maintaining gainful employment. This correspondence when considered with other evidence received shortly thereafter, such as the summary of the veteran's VA hospitalization from May to June 1994 for treatment of PTSD, the report of his VA psychiatric examination in September 1994 showing severe PTSD, employment data showing his problems with work due to PTSD, and documents from the Social Security Administration received in 1995 showing his entitlement to SSA disability benefits, effective from January 1995, due in part to PTSD indicate that his PTSD was totally disabling since March 11, 1994, under the criteria of diagnostic code 9411, effective prior to and as of November 7, 1996. A review of the correspondence received with the notice of disagreement on March 11, 1994, and the evidence received thereafter, including various statements from the veteran, evince an intent to claim an increased evaluation for PTSD and constitute an informal claim for this benefit. 38 C.F.R. § 3.155; Servello v. Derwinski, 3 Vet. App. 196 (1992). Hence, the correspondence received on March 11, 1994, with the veteran's notice of disagreement is an informal claim for an increased evaluation for PTSD. There was no evidence received from the time of the final July 1993 RO rating decision, denying an increased evaluation for PTSD, to the time of the March 11, 1994 informal claim that supports the assignment of a higher rating for the PTSD under the provisions of diagnostic code 9411, effective prior to November 7, 1996. Nor does the medical evidence of the veteran's psychiatric treatment and evaluations within one year prior to the March 11, 1994 informal claim when considered with the evidence received in conjunction with this claim support the assignment of a total rating for PTSD prior to this date. Hazan v. Gober, 10 Vet. App. 511 (1997). ORDER An effective date of March 11, 1994, for the assignment of a total rating for PTSD is granted, subject to the regulations applicable to the payment of monetary benefits. J. E. Day Member, Board of Veterans' Appeals