Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
1. Entitlement to an effective date earlier than October 4, 1996 for the award of service connection for posttraumatic stress disorder (PTSD).
2. Entitlement to an initial evaluation in excess of 10 percent for tinnitus.
REPRESENTATION
Appellant represented by:Kenneth L. LaVan, Attorney-at-Law
WITNESS AT HEARING ON APPEAL
Veteran and his spouse
ATTORNEY FOR THE BOARD
James G. Reinhart, Counsel
INTRODUCTION
The Veteran served on active duty from April 1972 to December 1993.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from August 2002 and November 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the August 2002 rating decision, the RO determined that there had not been clear and unmistakable error (CUE) in the rating decision that established an effective date of October 4, 1996 for grant of service connection for PTSD. In the November 2006 rating decision, the RO granted service connection for tinnitus and assigned an evaluation of 10 percent disabling.
In October 2003, the Veteran testified at a personal hearing before a Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In March 2008 and in April 2008 the Veteran was notified that the Veterans Law Judge no longer was employed at the Board and that the Veteran had a right to another hearing before a Veterans Law Judge who would participate in any decision made on his appeal. In April 2008 he responded that he did not wish to appear at another hearing.
In August 2010, the Veteran testified at a personal hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is associated with the claims file.
The issue of whether a June 1994 rating decision should be revised based on CUE in not granting service connection for tinnitus was raised by the Veteran's representative in July 2010 but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ, which is the RO in this case, for appropriate action.
FINDINGS OF FACT
1. In an October 1998 rating decision, the RO granted service connection for PTSD and assigned an effective date based on a finding of October 4, 1996 as the date it received the Veteran's claim of entitlement to service connection for PTSD.
2. A claim of entitlement to service connection for PTSD was received by the RO on June 8, 1995.
3. There was no claim of entitlement to service connection for PTSD received by the RO prior to June 8, 1995.
4. Proper application of the law as it was understood at the time of the October 1998 rating decision would have resulted in an effective date of June 8, 1995 for the award of service connection for PTSD, based on a claim received by the RO on that date that had not been adjudicated until the October 1998 rating decision.
5. In a July 2010 written statement, prior to promulgation of a decision in the appeal, the Veteran, through his representative, indicated that he agreed with VA's determination that a 10 percent evaluation was the highest evaluation that can be awarded for disability due to tinnitus.
CONCLUSIONS OF LAW
1. The October 14, 1998 rating decision contained clear and unmistakable error in establishing October 4, 1996 as the effective date of the award of service connection for PTSD. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2011).
2. The criteria for an effective date of June 8, 1995, but no earlier, for the award of service connection for PTSD, have been met. 38 U.S.C.A. § 5110(a) (West 1998); 38 C.F.R. § 3.400 (2011).
3. The criteria for withdrawal of a Substantive Appeal by the Veteran for the issue of entitlement to an evaluation in excess of 10 percent for tinnitus have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Effective date of award of service connection for PTSD
The Veteran contends that the proper effective date for grant of service connection for PTSD is June 1995 or earlier, rather than the date currently in place, October 4, 1996. Of note, in the instant document all referred to treatment records and examination reports are VA treatment records and examination reports unless specifically identified otherwise.
A. Factual and Procedural Background
On December 30, 1993, VA received a VA Form 21-526 listing the nature of the Veteran's disabilities as hearing loss, dislocated hip - contusion of left pelvis, and fungus infection.
In a February 1994 report of a medical examination that was conducted in response to his December 30, 1993 claim, the examiner stated that, in his opinion, the Veteran had no significant physical problems but that a source of concern was the Veteran's report of suicidal ideation and feelings of violent hostility. The examiner stated that he had requested that a psychiatric examination be conducted as part of the compensation and pension (C&P) examination.
A mental health clinic consultation was also requested on February 4, 1994 by the examiner who conducted the February 1994 medical examination. This examiner stated in the request that the Veteran had reported to him during the general medical examination that he was bothered by depression , did not like the way he felt, and had thoughts of suicide and hostile violence. A provisional diagnosis provided by that examiner was depression with suicidal / homicidal ideation.
The mental health clinic professional who addressed this request on February 4, 1994, provided two diagnoses - adjustment disorder with depressed mood, and PTSD with nightmares of the war. Referral to a psychiatrist was planned. On March 23, 1994 the Veteran was again seen in the mental health clinic. Assessment included PTSD Recurrent. This note was signed by a physician.
A C&P examination report dictated on February 4, 1994 and signed by a physician on March 3, 1994 refers to the Veteran's report that he had been suffering from insomnia and suicidal thoughts for the previous three years. He reported that he had taken over-the-counter medication for sleeping both during service and afterwards. He reported that most of the people that went to the Gulf War, as did he, had developed similar symptoms. He reported that he thought of suicide and felt depressed without knowing exactly why. He also reported that he was awakened by nightmares of people trying to kill him or of him trying to kill others. In response to a question from the examiner as to whether he had bad experiences during the Gulf War, he reported that he and other soldiers were told that it would be very important for each company to have at least 250 body bags just in case, and he complained that after they were in Iraq, the war stopped rather than giving them the opportunity to go all the way to where Saddam Hussein was and get rid of him.
In the conclusion of the report, the examiner stated that there was no rhyme or reason for the Veteran's suicidal thoughts or for any connection between any experiences during the Gulf War and the ensuing symptomatology. The examiner's ultimate conclusion was as follows: "It appears that this man's history is not sufficient to enable us to make a diagnosis of post traumatic stress disorder."
On May 23, 1994, the RO issued a rating decision in which it denied service connection for contusion of the left hip, fungus infection, and hearing loss in the left ear. It granted service connection for right ear hearing loss.
Received by the RO in August 1994 was a response to a request for the Veteran's service medical records. This response states that the record was in transit to the recipient of the request and to resubmit the request in 120 days.
In January 1995, a physician from VA's Medicine Service requested a Neurology Service consultation because of the Veteran's reports of headaches since his service in the Persian Gulf. The consultation report includes mention that the Veteran underwent a personality change following his return from the Persian Gulf and developed severe depression, suicidal ideas, became abusive towards his spouse, and had other symptoms. A March 1995 consultation request, from one department of Neurology Service to another department of Neurology Service, had to do with reports of headaches and sensory loss. A May 1, 1995 consultation report includes that neuropsychological testing was scheduled and there is a reference to memory problems. On May 23, 1995, a neuropsychological evaluation was conducted. Although there is a discussion of test results regarding both depression and PTSD, there is no definitive statement of whether he did or did not have PTSD. Mental health clinic notes from March 1, 1995 include an assessment of depression.
On June 8, 1995, the RO received a VA Form 21-4138 "Statement in Support of Claim" in which the Veteran stated as follows:
I the undersigned, here by request to re-open my S/C claim for an increase or to establish a new S/C disability, as indicated below. I am currently being treated at the Tampa, VA Medical Hospital and the Orlando, VA Medical Clinic for symptoms related to that of Gulf War Syndrome. Records of my treatment since returning from South West Asia may be found in my medical records located at the Orlando VA Clinic Tampa, VA Hospital, or St. Petersburg, VA Regional Center.
Disabilities Include: Skin rashes, Headaches, Dizziness, Fatigue, Memory loss, Pain in the joints and Muscle, Numbness in arms and legs, Loss of range motion in right arm, Sleeping disorder.
In a June 1996 decision the RO denied service connection for three "claims." Of interest is that statement listed in the Issue section of the document as "Service connection for headaches, dizziness, fatigue, memory loss, muscle pain, numbness of arms and legs, right arm condition with decreased rating of motion and sleep disorder due to undiagnosed illness." This statement is repeated in the Decision section of the document, adding the words "is denied." The Reasons and Bases section addressing this particular decision is, in its entirety, as follows:
Service connection may be granted for a disability which began in military service or was caused by some event or experience in service. Service connection for headaches, dizziness, fatigue, memory loss, muscle pain, numbness of arms and legs, right arm condition with decreased range of motion and sleep disorder is denied since these conditions neither occurred in nor was (sic) caused by service. the (sic) service medical records contain no complaints of, treatment for or diagnosis of any of these conditions while the veteran was on active military duty.
The medical evidence presently considered contains no complaints for or diagnosis of any of these conditions while the veteran was in the Persian Gulf Theater of Operations or within 2 years of leaving the Persian Gulf. Service connection may be established for disability resulting from undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than two years after the date on which the veteran last performed service in Southwest Asia theater of operation during the Persian Gulf War. Service connection for headaches, dizziness, fatigue, memory loss, muscle pain, numbness of arms and legs, right arm condition with decreased range of motion and sleep disorder due to undiagnosed illness is denied since these conditions neither arose during service in the Persian Gulf theater, nor manifested to a compensable degree of 10 percent within two years after the last date of service in the Persian Gulf theater.
Listed in an Evidence section of the June 1996 rating decision is "ervice medical records for the period 4/72 to 12/93."
The next significant report is from a psychiatric C&P examination in September 1997. That report includes a diagnosis of PTSD.
The rating decision in which the RO granted service connection for PTSD is dated October 14, 1998. It lists as evidence a copy of the Veteran's 201 personnel file received in December 1997. In the reasons and bases section of the decision the RO relied on receipt of the Bronze Star, showing in the 201 file, and the 1997 VA examination in determining that service connection for PTSD was warranted. In that decision, the RO also denied service connection for 14 other claimed disabilities and determined that the Veteran was ineligible for Chapter 35 Dependent's Educational Assistance.
In a letter dated October 27, 1998, the RO informed the Veteran that a decision had been made on his claim and the decision document was attached. It informed the Veteran that if he thought the decision was wrong, he should write to the RO and tell the RO why. It also stated that the enclosed VA Form 4107 explained his right to appeal. This letter was also sent to the Veteran's representative at that time, the American Legion.
Also associated with the claims file is a report of telephone contact dated October 20, 1998. This indicates that the person contacted was the Florida Department of Veterans Affairs. It states in its entirety as follows:
Per Decision Review Officer, . . . , I contacted the above named veteran to ascertain if the veteran wished to pursue all issues under appeal. The veteran stated that he was very dissatisfied with the denials, that he is totally unemployable due too (sic) the injuries he received during service, and that he wishes to continue with his appeal.
An October 1998 statement of the case is of record that lists 14 issues. These 14 issues address claims denied in the October 14, 1998 rating decision.
In December 1998, the RO received a VA Form 21-4138 in which the Veteran stated that he wanted the RO to reopen his claim for service connection for PTSD. He stated that he was currently rated 50 percent for PTSD and had been hospitalized at the VA Medical Center (VAMC) for two weeks in August 1998. He also reported that he had seen physicians for PTSD treatment in December 1998 and asked that these records be obtained to support his claim of entitlement to an increased rating for PTSD. He stated that the medications that VA had prescribed had side effects that rendered him unemployable. He included a list of the medication and that list contains drugs prescribed for psychiatric symptoms.
Date stamped as received by the RO in January 1999, is a hospital summary documenting the Veteran's inpatient treatment for psychiatric treatment from July 28, 1998 to August 3, 1998.
Following the December 1998 letter, the Veteran provided argument in December 1998 regarding the rating assigned for PTSD and whether or not service connection was warranted for major depressive disorder. There is no mention of disagreement or dissatisfaction with the effective date assigned for award of service connection for PTSD. He referred to a May 1995 evaluation in the context of arguing that he had a clinical diagnosis of major depressive disorder at that time.
There is no other document received within one year of the October 1998 rating decision with regard to PTSD and no document received within that time frame that refers to the date of award of service connection for PTSD. In a writing received on June 25, 2001, the Veteran stated that he had requested compensation benefits as early as January 28, 1994 and that he wanted retroactive pay from that date. The RO has referred to his request for an earlier effective date as dated on July 9, 2001. The only document date stamped with that date is a copy of his original VA Form 21-526.
The RO accepted the June - July 2001 writing as an assertion that there was CUE in the 1998 rating decision. This is shown by the rating decision dated August 23, 2002 in which the RO listed one of the issues as whether the decision assigning effective dates to establish service connection for PTSD and other disabilities were clearly and unmistakably erroneous. The RO denied the Veteran's request for revision based on CUE. In October 2002, the RO received a notice of disagreement with that decision and it issued a statement of the case in December 2002. In January 2003, the RO received a VA Form 9 from the Veteran perfecting his appeal of the August 2002 decision.
In June 2004, the Board denied an effective date earlier than October 4, 1996 for award of service connection for PTSD and in December 2004 denied a motion for reconsideration of that decision. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Veterans Court). In August 2007 the Veterans Court vacated the Board decision as to the effective date of award of service connection for PTSD and remanded that issue to the Board. The Veterans Court explained that the Board found the October 1996 statement was the first instance of the Veteran seeking benefits for PTSD but the Board did not account for the fact that some of the symptoms listed on the June 8, 1995 statement could correspond to a mental illness such as PTSD. Concluding that the Board had not provided a sufficient statement of reasons and bases to explain how the 1996 statement provided the earliest possible effective date, it remanded the issue to the Board. Another issue before the Veterans Court at that time was entitlement to an earlier effective date for award of service connection for low back strain. In a Background section of its decision, the Veterans Court first noted that in October 1996 the RO granted service connection for PTSD, effective October 4, 1996 and in November 1999 the RO granted entitlement to service connection for low back strain, effective June 8, 1995. The Veterans Court then stated "[t]he appellant perfected appeals of the effective dates assigned for both disabilities."
In the August 2007 decision, the Veterans Court also determined that because there was no claim pending for entitlement to service connection for PTSD at the time of the May 1994 rating decision, the Veteran's argument that VA's failure to obtain all of his service treatment records before issuing the rating decision was without merit. The Veterans Court also determined that the Veteran's complaints to physicians of depression did not constitute a claim of entitlement to service connection for PTSD.
In August 2008, the Board again denied entitlement to an effective date earlier than October 4, 1996 for award of service connection for PTSD. The Board found that if the June 8, 1995 statement included a claim of entitlement to service connection for PTSD, then the RO implicitly denied the claim in the June 1996 rating decision and the Veteran did not appeal that decision. The Board also determined that the Veteran had not appealed the October 1998 decision as to the effective date assigned for service connection for PTSD and that the October 1998 decision was final.
The Veteran appealed the August 2008 Board decision and in December 2010 the Veterans Court vacated the decision as to the issue of the effective date assigned for award of service connection for PTSD and remanded it to the Board for further adjudication. In that decision, the Veterans Court indicated three points that the Board should address.
First, the Veterans Court stated that it was not clear from the record before it whether this is a direct appeal from the October 1998 decision or if it is a CUE challenge to that decision. In that context, the Veterans Court noted "[t]he Court's decision in August 2007 indicated that the appellant properly appealed the effective date assigned to his PTSD claim, but the Board decision on appeal stated that the October 1998 rating decision was final." The Veterans Court stated that a remand would permit the Board to sort out the confusing procedural history in this case.
Second, the Veterans Court addressed the government's argument that any error in the Board's decision was harmless because the Veteran was first diagnosed with PTSD in September 1997 and therefore was not entitled to service connection until September 1997. The Veterans Court stated that conflict exists as to the date of the initial PTSD diagnosis and the limited record before it did not allow the issue to be reviewed, indicating that the Board should provide the necessary discussion on remand.
Third, the Veterans Court determined that the Board did not explain how the Veteran could have deduced that his claim was denied in June 1996 and that it was not readily apparent and therefore a remand was necessary.
A decision that has become final may be collaterally attacked via an assertion that it contained CUE and if the decision is found to contain CUE it must be reversed or revised. 38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2011); Fugo v. Brown, 6 Vet. App. 40, 44 (1993). A collateral attack of an RO decision may be made at any time after the decision is made. 38 U.S.C.A. § 5109A. Whether a decision is directly appealed or the subject of a collateral attack via an assertion of CUE is important because the collateral attack involves a more onerous evidentiary standard and limits the review to the facts as they were known at the time of the decision and the law as it was understood at the time of the decision. See Damrel v. Brown, 6 Vet. App. 242, 245 (1995).
On its face, the October 20, 1998 report of contact is not a notice of disagreement with the rating or the effective date assigned for PTSD in the October 1998 decision. Service connection for PTSD was granted in the October 14, 1998 rating decision, fourteen other claims were denied. The October 20, 1998 report of contact expresses dissatisfaction with and a desire to contest those denials. Although the report includes that Veteran asserted unemployability due to his service injuries, a sympathetic reading of the report of contact could yield no more than a notice of disagreement with the rating assigned. There is nothing in this report of contact that indicates a dissatisfaction with the effective date assigned for service connection for PTSD. It did not initiate an appeal of that issue.
The December 1998 submission is a notice of disagreement with the disability rating assigned for the Veteran's PTSD. Although the Veteran requested an increased rating, he submitted the documents dated prior to the date of the rating decision to demonstrate the increase in disability, thus effectively disagreeing with the initial rating assigned for PTSD. Regardless of the Veteran's choice of words, he was seeking a higher initial rating for his PTSD, whether that rating was staged or not. Moreover, given that at the time of the October 20, 1998 report of contact service connection had been established for only PTSD, right ear hearing loss, and tinea curis, and given that he argued that he was unemployable due to service related injuries, that document could have been construed as a notice of disagreement with the rating assigned in the October 14, 1998 rating decision. This makes little difference given the December 1998 submission.
Even taking a sympathetic interpretation of these documents, the effective date of award of service connection for PTSD was not appealed. Both the October 20, 1998 report of contact and the December 1998 letter referred to the amount of compensation, not whether he was entitled to the award of service connection at an earlier date. Moreover, neither letter referred to dates earlier than the date that service connection had then been established for PTSD.
While there is a blurring of effective dates and disability evaluations in claims for increased ratings, (i.e., where the claim indicates that there has been an increase in disability since the initial grant of service connection), that blurring is because the effective date of an increased evaluation can go back to one year prior to the claim for an increase. 38 U.S.C.A. § 5110(b)(2); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). This is not the case where there is a dispute as to the rating assigned in the decision that awarded service connection. In such cases, if a higher evaluation is awarded it can be effective no earlier than the effective date of award of service connection. Cf. Moore v. Nicholson, 21 Vet. App. 211, 216-17 ("although Mr. Moore's claim also involves an initial rating and presents the possibility of staged ratings, those ratings would not extend past the undisputed date the claim was filed"). For these reasons, the Board finds that neither the October 20, 1998 report of contact nor the December 1998 letter constituted a notice of disagreement as to the effective date of service connection for PTSD.
No other document was submitted within one year of the October 1998 rating decision. The earliest statement that could be construed as disagreeing with the effective date assigned service connection for PTSD is the statement received in June - July 2001. Regardless of whether the statement that initiated the RO's actions with regard to an earlier effective date was received in June 2001 or July 2001, it was received more than one year after the October 1998 rating decision. Hence, it was not a timely notice of disagreement as to the effective date assigned for service connection for PTSD. As such, the October 1998 decision became final as to that issue.
The October 2002 notice of disagreement initiated an appeal of the August 23, 2002 decision denying the request for revision of the October 1998 rating decision as to the effective date assigned for award of service connection for PTSD. The January 2003 Form 9 perfected that appeal to the Board.
There is no discrepancy between a finding that the October 1998 rating decision was final as to the issue of the effective date assigned for award of service connection for PTSD and the Veterans Court's statements in the 2007 decision that "n October 1998, the RO granted entitlement to service connection for PTSD, effective October 4, 1996 . . . In November 1999, the RO granted entitlement to service connection for low back strain, effective June 8, 1995. The appellant perfected appeals of the effective dates assigned for both disabilities." Although the effective date issue arose from a request for revision based on CUE, the issue was ultimately whether he was entitled to an earlier effective date for award of service connection for PTSD. That the avenue for seeking that result was a collateral attack rather than a direct appeal does not introduce any conflict between the statement in the 2007 Veterans Court decision and the finding that the October 1998 rating decision was final as to the issue of the effective date for service connection for PTSD.
C. Analysis - The June 8, 1995 Claim
The next question is whether the claim received by the RO on June 8, 1995 included a claim of entitlement to service connection for PTSD. As this issue comes to the Board via an allegation of CUE in the October 1998 decision, the Board's analysis considers the facts as they were known at the time and the law as it was understood at the time.
Any communication or action from a claimant or his or her representative, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, may be considered an informal claim. 38 C.F.R. § 3.155(a) (1998). Such informal claim must identify the benefit sought. Id.
Prior to 1998, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) had explained that VA is "to fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits." Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1988) (quoting H.R. Rep. No. 100-963, at 13, reprinted in 1988 U.S.C.C.A.N. 5782, 5795.) If it was understood in 1988 that VA was to sympathetically develop a Veteran's claim to the optimum before deciding it on the merits, then it follows that VA was to sympathetically read the claim and, as such, would be the starting point of any development.
The next question though is whether a sympathetic reading of the Veteran's claim was understood in 1998 to include reading a claim of service connection for PTSD given that service connection was requested for two symptoms of PTSD. When the RO granted service connection for PTSD in October 1998, 38 C.F.R. § 4.125 (1998) expressed that the diagnosis of a mental disorder must conform to the DSM-IV. At that time 38 C.F.R. § 4.130 (1998), stated that the nomenclature employed in the rating schedule for mental disorders was based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM IV), American Psychiatric Association. It explained that to comply with the fundamental requirements for rating psychiatric conditions, it is imperative that rating personnel familiarize themselves thoroughly with this manual. Id. Prior to this, and in effect when the RO received the June 1995 statement, 38 C.F.R. § 4.125 (1994) addressed general considerations in determining the disability rating to be assigned for mental disorders. That regulation stated that the psychiatric nomenclature employed is based upon the Diagnostic and Statistical Manual of Mental Disorders, Third Edition (DSM III), American Psychiatric Association. It explained that to comply with the fundamental requirements for rating psychiatric conditions, it is imperative that rating personnel familiarize themselves thoroughly with this manual. Of note, in 1995, the Manual M21-1 directed adjudicators to the DSM-III-R. Cohen v. Brown, 10 Vet. App. 128, 139 (1997). The RO was required to employ the most favorable provision to the Veteran's claim. Id.
Diagnostic criteria for PTSD under the DSM-IV included difficulty falling or staying asleep, as one of the listed symptoms under criterion D, and inability to recall an important aspect of the trauma as one of the symptoms under Criterion C. QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IV 209-11 (1994). Diagnostic criteria for PTSD under the DSM-IIIR included these same symptoms. See QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-IIIR 146-48 (1987). The criteria found in the DSM-III listed both sleep disturbance and memory impairment under Criterion D. QUICK REFERENCE TO THE DIAGNOSTIC CRITERIA FROM DSM-III at 136-37 (1980).
Even though the regulations just discussed are found in Chapter 4 of Title 38 of the C.F.R., an interpretation of those provisions as limited solely to rating a disability is inconsistent with the reference in the regulations to "diagnosis." An adjudicator thoroughly familiar with the DSM would recognize that memory loss and sleeping disorder are symptoms of PTSD and thus a sympathetic reading of the June 1995 statement would yield a claim of entitlement to service connection for PTSD.
There was significant case law at the time of the October 1998 decision establishing that VA was to examine the entire record and infer claims for benefits without any requirement for specific mention of the claimed condition or claimed benefit. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991) (finding that the RO should have inferred a claim of entitlement to special monthly compensation from the claim for an increased rating even though he did not place eligibility for that benefit at issue); EF v. Derwinski, 1 Vet. App. 324 (1991) (providing that once a claim is received, VA must review the claim, supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims); Suttmann v. Brown, 5 Vet. App. 127, 132 (1993) (stating that when a particular claim has been raised, the Board must consider "all documents or oral testimony submitted prior to the BVA decision" and " 'review all issues which are reasonably raised from a liberal reading' " of such documents and oral testimony). Though the Veterans Court referred to the BVA in Suttmann, it cannot be said that the same reasoning does not apply to the RO, particularly given that it is the RO, not the Board, that views claims in the first instance.
Here, the record included a clear diagnosis of PTSD from a physician at the VA mental health clinic in 1994, as well as numerous documents discussing whether or not the Veteran had PTSD. It is clear from Suttmann and EF, that the documents assembled in the claims file at the time of the 1998 decision had to be considered to determine the scope of any claim previously filed but not adjudicated.
In summary, the writing received by the RO on June 8, 1995 included a claim of entitlement to service connection for PTSD.
D. Analysis - First Diagnosis of PTSD
As noted in the Background section of the instant decision, it was argued to the Veterans Court that service connection for PTSD could not be granted earlier than October 1996 because the Veteran was not diagnosed with PTSD until September 1997 and therefore entitlement to service connection for PTSD did not arise until September 1997.
This argument arises from the language of 38 C.F.R. § 3.400 which implements 38 U.S.C.A. § 5110. Unless specifically provided otherwise in Chapter 51 of Title 38 the United States Code, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a)(West 2002) (emphasis added). Except as otherwise provided, the effective date an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (West 1998 & West 2002) (emphasis added).
In August 2011 the Veterans Court issued DeLisio v. Shinseki, 25 Vet. App. 45 (2011), a decision that renders without merit any argument that the effective date of award of service connection for the Veteran's PTSD can be limited by the date of diagnosis of PTSD. The Veterans Court corrected any understanding of the law that required a diagnosis of a condition prior to the establishment of service connection in its statement as follows:
The Board found that the October 31, 1980, claim for benefits did not and could not include a claim for benefits for diabetes because "[t]he veteran could not claim a disorder that was not diagnosed." R. at 21. However, the Board misstated the law. See Brokowski, 23 Vet. App. at 90 ("[A] medical diagnosis is not necessary to initiate a claim."); see also Jandreau, 492 F.3d at 1377 (holding that a medical diagnosis is not required to substantiate a claim in certain circumstances). Specifically, entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition. 38 U.S.C. § 5110(a); see McGrath, supra.
Id.
The Veterans Court explained that there are instances where the "facts found" or alternatively, "date entitlement arose" may be later than the date of claim. These included (1) date the disability first manifested and (2) the date entitlement to benefits was authorized by law and regulation; (it is noted that these two situations were not listed as the only two situations). Delisio, 25 Vet. App. at 52.
Thus, even if the Veteran was first diagnosed with PTSD in September 1997, such fact could not limit establishment of service connection for PTSD to 1997 simply because of the date of such diagnosis. What is important is not when he was first diagnosed but when his condition first manifested. As to the second situation listed in DeLisio, it has no significance in the Veteran's case because service connection was available by statute and regulation long before the Veteran filed any claim for VA benefits. The Board finds no basis for a determination that the law was understood in 1998 to limit the effective date of award of service connection for a disability to the date of diagnosis of such disability.
At the time of the 1998 decision, 38 C.F.R. § 3.304(f) (1998) required a clear medical diagnosis of PTSD. In Cohen v. Brown, 10 Vet. App. 128, 139 (1997) the Veterans Court stated that "a "clear diagnosis" should be an "unequivocal" one." The Veterans Court explained that an unequivocal diagnosis by a mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor." Id. at 140. Even under this standard, the Board finds that the Veteran was first diagnosed with PTSD in 1994.
The first mention of psychiatric symptoms found in the claims file is the February 1994 report of medical examination that was conducted in response to his claim of entitlement to service connection for a hip disability and led the examiner to request a C&P psychiatric examination and request a clinical consultation with the mental health clinic. The mental health clinic professional who addressed this request provided two diagnoses, adjustment disorder with depressed mood, and PTSD with nightmares of the war. On March 23, 1994 he was again seen in the mental health clinic and a physician diagnosed PTSD. Because the 1994 diagnosis was in a mental health clinic treatment note, signed by a medical doctor, and unequivocal, it was a clear medical diagnosis of PTSD.
It is not ignored that the record also includes the C&P psychiatric examiner's conclusion on March 3, 1994 that the Veteran's history was insufficient to support a diagnosis of PTSD, the March 1, 1995 mental health clinic notes assessing depression, and the May 23, 1995 neuropsychological evaluation that included a discussion of depression and PTSD but provided no definitive statement as to whether he did or did not have PTSD. The word "unequivocal" is defined as "admitting to no doubt or misunderstanding." Webster's II New College Dictionary (2001) at 1203. Cohen and 38 C.F.R. § 3.304(f) (1998) refer to "a" clear diagnosis; there is thus no requirement that there must be agreement between medical professionals as to whether or not the claimant had PTSD; so long as there is at least one unequivocal diagnosis, the requirement is met. The March 1994 diagnosis was unequivocal.
The Board thus finds that the Veteran was first diagnosed with PTSD on February 4, 1994.
As noted above, it is not the date that PTSD was diagnosed that matters in determining the earliest allowable effective date for award of service connection. The VA mental health clinic treatment records, taking into consideration the later determination that he had PTSD, are evidence that PTSD manifested prior to when the RO received his claim on June 8,1995.
E. Analysis - Whether Service Connection for PTSD was Implicitly Denied in the June 1996 Rating Decision.
Having determined that the claim received on June 8, 1995 included a claim of entitlement to service connection for PTSD, the next question is whether the claim was still pending at the time of the October 1998 rating decision. The answer depends on whether the claim was implicitly denied in the June 1996 decision. This is important, because if the claim was denied in June 1996, then it could be argued that the October 4, 1996 submission was a claim to reopen the previously denied claim which could then lead to a finding that an effective date earlier than October 4, 1996 is not warranted.
To answer this question and understand the legal theory of an implicit denial, there are significant cases that must be considered.
In Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed Cir 2006), the Federal Circuit held that
Where the veteran files more than one claim with the RO at the same time, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run.
It also held:
We explicitly rejected the government's contention that the implied TDIU claim was pending and unadjudicated. Id. Relying on Roberson, 251 F.3d at 1383-84, we held that where an RO renders a decision on a veteran's claim for benefits but fails to address one of the claims, that decision is final as to all claims; the RO's failure to address the implied claim "is properly challenged through a CUE motion," not a direct appeal.
Id. 1262.
But in Ingram v. Nicholson, 21 Vet. App. 232, 239 (2007), the Veterans Court stated:
In essence, we must determine whether the 1986 RO decision decided a section 1151 claim, which would now have to be the subject of a collateral attack, or whether the alleged section 1151 claim in 1986 was still pending at the time of the appellant's 1992 correspondence and, therefore, is part of the present claim stream including this direct review. If we determine that the 1986 RO decision decided a section 1151 claim, then we do not have jurisdiction to review any alleged error in that decision, as that decision is final and not part of the claim presently on direct appeal. . . . If we determine that any potential claim was still pending and part of the claim stream that resulted in the Board decision on appeal, then we would have jurisdiction to address the substance of the appellant's argument.
This narrowing of Deshotel by Ingram is consistent with later cases issued by the Federal Circuit. Indeed, in Adams v. Shinseki, 568 F.3d 956 (Fed. Cir. 2009), the Federal Circuit discussed Deshotel and Ingram at length. It eventually summed up what is necessary to find that a decision implicitly denied a claim, stating "as the Veterans Court noted in Ingram, and in this case, the key question in the implicit denial inquiry is whether it would be clear to a reasonable person that the DVA's action that expressly refers to one claim is intended to dispose of others as well." Id. at 964.
In Cogburn v. Shinseki, the Veterans Court discussed four factors that must be considered in determining if a claim was implicitly denied, as follows: (1) The specificity of the claims or the relatedness of the claims; (2) the specificity of the adjudication, i.e., does the adjudication allude to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied; (3) the timing of the claims; (4) whether the claimant is represented.
The third and fourth factors are not complicated in the case now before the Board. As to the timing of the claims, that factor operates in favor of finding that there was an implicit denial of service connection for PTSD in the June 1996 rating decision. The Veteran claimed entitlement to service connection for all of the symptoms listed in one document. As to representation, that factor operates in favor of finding that there was no denial of service connection for PTSD in the June 1996 rating decision because the Veteran did not have the assistance of an attorney to advise him on what was claimed and what was denied.
The first Cogburn factor , the specificity or relatedness of the claims, is closer. Here, the claims were not specific, and there were not two or more specifically diagnosed disorders that were closely related. Rather he referred only to symptoms; the only mention in the 1995 claim of a theory of entitlement was Gulf War Syndrome.
In Deshotel, this factor operated in favor of finding an implicit denial of the psychiatric condition because the psychiatric condition was claimed to have been due to a head injury and the claim of entitlement to service connection for a head injury was explicitly denied in the decision at issue in that case. In Ingram, the question was an 1151 claim versus a pension claim, which have different elements and are governed by different chapters of regulations and statutes.
In the Veteran's case all of the claims in the June 1995 document were for service connection and therefore all were governed by essentially the same statutes and regulations and certainly by the same chapter of Title 38 of the U.S. Code. In that sense the case differs from Ingram and is more like Deshotel. However, in Deshotel the psychiatric condition was derivative of the claimed head injury so there was a close relatedness, while in the instant case there is no such stated derivative aspect. As such, this factor does not fall on one side or the other to the extent that it can be said to have much impact.
This leaves the second factor discussed in Cogburn, the specificity of the adjudication. That is, does the adjudication allude to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied. This is a reasonable person standard. See Adams, 568 F.3d at 963.
As to the specificity of the adjudication, that is a closer matter. From the statement that the service medical records contain no complaints, treatment, or diagnosis of any of the conditions, the adjudication was general and one might say that a reasonable person would understand that any condition that involved these symptoms was denied since there was no complaints, treatment, or diagnosis of such conditions in service. However, the next paragraph in the Reasons and Bases section of the June 1996 decision deals solely with an undiagnosed illness and in that sense is specific and a reasonable person would not expect that a claim of entitlement to service connection for a diagnosed condition had been denied. The complete lack of mention of PTSD would also lead a reasonable person to conclude that no claim of entitlement to PTSD had even been considered, let alone denied. Moreover, the phrasing in the Issue and the Decision sections of the June 1996 decision would lead a reasonable person to conclude that what was considered by the RO and what was adjudicated in the decision was only service connection for an undiagnosed illness manifesting as such symptoms.
In summary, the second Cogburn factor, specificity of the adjudication, falls in favor of finding that the June 1996 rating decision did not contain an implicit denial of service connection for PTSD. Taking a broader view and considering the statement in Adams, it is difficult to say that it would be clear to a reasonable person that the June 1996 decision intended to dispose of a claim of entitlement to service connection for PTSD.
For the reasons just discussed, the Board finds that the June 1996 decision did not implicitly, or for that matter explicitly, deny service connection for PTSD. The claim received on June 8, 1995 therefore remained pending until the RO issued its decision in October 1998 granting service connection for PTSD.
F. Analysis - CUE in the October 1998 Decision
A prior RO decision must be revised or reversed when there is a finding of CUE in that decision. 38 C.F.R. § 3.105(a). CUE is established when certain conditions have been met. First, either the correct facts contained in, or constructively contained in, the record were not before the adjudicator, or the statutory or regulatory provisions extant at the time were incorrectly applied. See Damrel v. Brown, 6 Vet. App. 242, 245 (1995). Second, the alleged error must be "undebatable," not merely a "disagreement as to how the facts were weighed or evaluated." Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); and finally, the error must have "manifestly changed the outcome" of the prior decision. Id.; see Bustos v. West, 179 F .3d 1378, 1380-81 (Fed.Cir.1999) (expressly adopting the "manifestly changed the outcome" language in Russell ).
The Board has already found that the law as it was understood at the time of the October 1998 decision included a duty on the part of the VA adjudicator to read submissions by claimants in a manner to recognize all claims reasonably raised by those submissions and the other documents of record at the time of the 1998 decision. The facts before the RO at the time of the 1998 decision included the identification of symptoms in the June 1995 statement that were listed in the DSM III, IIIR, and IV for PTSD. There were treatment records documenting that the Veteran had symptoms of PTSD and a diagnosis of PTSD as far back as 1994. Given the facts before the RO at the time of record, it was error to not have found the June 8, 1995 submission to include a claim of entitlement to service connection for PTSD.
It was clear error in the sense that the adjudicator was required by regulation to be thoroughly familiar with those provisions. The error is undebatable. There is no mention of the June 1995 submission in the October 1998 rating decision. Nor is there any mention of 38 C.F.R. § 4.125 (1994 & 1998) or § 4.130 (1998). An adjudicator looking at the record documenting that the Veteran was diagnosed with PTSD as early as 1994, and seeking disability compensation for memory loss and a sleeping disorder, two symptoms of PTSD, and that adjudicator having determined that service connection for PTSD was warranted, would have, looking back through the record at the time of the October 1998 rating decision, recognized the June 1995 claim as a claim to include service connection for PTSD if the adjudicator had correctly applied 38 C.F.R. § 4.125 (1994 & 1998) or § 4.130 (1998) in light of Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1988), EF v. Derwinski, 1 Vet. App. 324 (1991), and Suttmann v. Brown, 5 Vet. App. 127, 132 (1993).
As to the outcome determinative aspect of CUE, the basis for establishing October 4, 1996 as the effective date of award of service connection for PTSD was that this was the date of claim. If the date of claim was June 8, 1995 then the outcome would be different; the date of award of service connection would be June 8, 1995. Reasonable minds could not differ if but for the error, the outcome would have been different. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (To constitute CUE, the error must "compel[ ] the conclusion, to which reasonable minds could not differ, that the result would have been different but for the error" and "persuasive reasons must be given as to why the result would have been manifestly different").
The October 1998 decision must therefore be revised and an effective date of award of service connection of June 8, 1995 established.
An effective date earlier than June 8, 1995 is not warranted. The December 1993 claim was the only earlier claim of entitlement to VA disability compensation submitted by or for the Veteran. That claim referred only to physical disabilities. A sympathetic reading of that claim could not yield a claim of entitlement to PTSD or any psychiatric condition. In other words, the December 1993 claim identified the benefits sought but did not identify entitlement to compensation benefits due to PTSD or any psychiatric condition and was therefore not a claim of any kind. See 38 C.F.R. § 3.155(a). The Veterans Court has already determined, in the August 2007 decision, that the reports of psychiatric symptoms by the Veteran to clinicians and during examination reports do not constitute a claim or claims of entitlement to service connection for PTSD. This is the law of the case and binding on the Board. See Browder v. Brown, 5 Vet. App. 268, 270 (1993) ("nder the 'law of the case,' questions settled on a former appeal of the same case are no longer open for review"). As to the receipt of the Veteran's 201 file after the initial request for service treatment records, such fact does not allow for an effective date for award of service connection for PTSD earlier than June 8, 1995 because the earliest possible effective date is the date of claim, which is June 8, 1995. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.
Finally, the Veterans Claims Assistance Act of 2000 notice and assistance provisions are not applicable to this issue because the issue comes to the Board through appeal of the denied request for revision of the October 1998 decision based on CUE. See Juarez v. Principi, 16 Vet. App. 518, 520 (2002); Livesay v. Principi, 15 Vet. App. 165, 179 (2001).
In summary, the October 1998 rating decision must be revised to assign an effective date of June 8, 1995 for award of service connection for PTSD.
II. Disability Evaluation for Tinnitus
In a November 2006 rating decision, the RO granted service connection for tinnitus and assigned a 10 percent disability rating. It established an effective date for service connection of November 14, 2005 based on its determination that this was the date that it received the Veteran's "reopen claim." In January 2007, the Veteran submitted a letter titled Notice of Disagreement. He contended that the RO was incorrect in stating that his tinnitus was caused by what he referred to as military specialty noises, described by the Veteran as noise from vehicles, and communication levels, but rather that the RO should have found that his tinnitus was caused by noise from ordnance, such as missiles and rockets. The RO interpreted this as a notice of disagreement with the evaluation of 10 percent assigned, and expressed the issue as "increased evaluation for tinnitus, currently evaluated as 10 percent disabling." The Veteran perfected this appeal in August 2007.
In a July 2010 writing, the Veteran's representative stated as follows:
The claim under consideration is for tinnitus. The veteran has been receiving 10 percent disability for tinnitus since 11/14/05. The VA considers that the veteran is claiming an increase in the rating for tinnitus; however, the veteran understands that 10% is the highest rating that can be awarded for this disability and is claiming an earlier onset date for the grant of disability from tinnitus, to the original application in 1994.
After referring to the Veteran's service and providing an explanation of the history of his claim of entitlement to service connection for tinnitus, his representative stated that "[t]he veteran contends that the VA committed clear and Unmistakable Error in denying the 1994 claim for tinnitus."
During the October 2010 hearing, the Veteran testified consistent with his earlier statements. That is, he testified as to the specific in-service cause of his tinnitus, asserting that it was caused by in-service exposure to acoustic trauma from ordnance as opposed to other sources of acoustic trauma during service. A necessary element of service connection for a disability is incurrence or aggravation of an in-service disease or injury. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2011); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Once this in-service element was established and service connection awarded no change in the outcome could result from identifying the particular sources of in-service acoustic trauma. He also stated that he was not asking for a higher rating for disability due to tinnitus, acknowledging that the rating is limited to 10 percent.
The only issue that was developed as an appeal from the 2005 grant of service connection for tinnitus was the issue of the disability rating assigned. The July 2010 letter and the Veteran's testimony establish that there is no question of law or fact in dispute as to the evaluation assigned.
The July and August 2010 documents just described are effectively a withdrawal of his appeal with regard to the only issue before the Board as to his tinnitus claim - the disability rating assigned. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a). Here, the Veteran has withdrawn the appeal of the claim of entitlement to a disability rating in excess of 10 percent for tinnitus, has done so prior to the promulgation by the Board of a decision as to that issue, and there remain no allegations of errors of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and it is dismissed.
ORDER
Entitlement to an effective date of June 8, 1995 for award of service connection for PTSD is granted.
The appeal of the issue of entitlement to an evaluation in excess of 10 percent disabling for tinnitus is dismissed.
____________________________________________
TARA L. REYNOLDS
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
Carlie passed away in November 2015 she is missed.
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carlie
http://www.va.gov/vetapp12/Files4/1227528.txt
Carlie passed away in November 2015 she is missed.
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