McGrath v. Gober

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

N O . 99-132

S TEPHEN T. M C G RATH , A PPELLANT ,

V.

H ERSHEL W. G OBER ,

A CTING S ECRETARY OF V ETERANS A FFAIRS, A PPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided August 16, 2000 )

Roger W. Rutherford, of Norton, Virginia, was on the brief for the appellant.

Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Mary Ann

Flynn, Deputy Assistant General Counsel; and Brian B. Rippel, all of Washington, D.C., were

on the brief for the appellee.

Before HOLDAWAY, IVERS, and STEINBERG, Judges.

HOLDAWAY, Judge, filed the opinion of the Court. STEINBERG, Judge, filed a

separate opinion concurring in part and dissenting in part.

HOLDAWAY, Judge: The appellant, Stephen T. McGrath, appeals from an October

1998 decision of the Board of Veterans' Appeals (BVA or Board) which (1) denied service

connection for schizophrenia, (2) denied an increased disability rating for his service-connected

post-traumatic stress disorder (PTSD), and (3) denied an effective date earlier than June 1992

for that PTSD condition. Both parties have filed briefs. The Court has jurisdiction of the case

under 38 U.S.C. § 7252(a). For the following reasons, the Court will affirm in part and vacate

in part the decision of the Board, remand a matter for readjudication, and dismiss the appeal

in part.

1

I. FACTS

The appellant served on active duty in the U.S. Navy from July 1942 to February 1954.

His service medical records indicated that in February 1944 he sustained multiple shrapnel

wounds to his right leg during combat operations. Although trained as a dentist, the appellant

was serving as an anesthesiologist at the time of his combat injury. His service medical records

did not reflect that the appellant suffered from any sort of mental or nervous disorder during

his military service. In March 1954, the appellant filed claims for compensation for residuals

of several conditions for which he was treated during military service. At that time, he did not

file a claim for any mental or nervous disability.

In January 1970, the appellant reported for treatment at a VA hospital for alcoholism.

The admission report noted that he had been treated for alcoholism on several other occasions.

The report stated that "[a]t the time of admission, the patient manifested tension, perplexity,

vagueness of speech, insecurity, bizarre delusions of a persecutory nature, impairment of

memory, and depression." The appellant told his treating physician that he had not been able

to work for three years. The physician diagnosed the appellant with alcohol addiction, drug

dependence, and latent schizophrenia. In May 1970, a VA regional office (VARO) determined

that the appellant's schizophrenia was not related to his military service. In December 1971,

the appellant wrote a letter to the VARO which related to his claim for a "nervous condition."

The letter stated that he had been treated during 1951 at a U.S. Naval hospital and on several

occasions after his discharge for a nervous condition. In January 1972, the appellant wrote a

second letter to the VARO to clarify his claim. In this letter, he stated:

I was in the invasion of Roi-Namur, Saipan, Tinian and Iwo Jima as an assault

dentist with the 4th Marine Division and was wounded (Purple Heart). It was

suggested at the [Naval Supply Center], Lido Beach, N.Y. by the psychiatrist that

I go to [a VA Hospital] for a work-up and possible treatment, with a diagnosis

of anxiety neurosis, combat-induced. I was too "gung-ho" and decided to work

through it.

Several years later . . . this anxiety evoked an alcoholic response, and I was

referred . . . to [Captain] Nichols . . . a psychiatrist . . . . I continued to see

Captain Nichols on an out-patient basis until I was transferred . . . .

Later that month, Dr. Russell Barton, director of the Rochester State Hospital wrote a letter to

the VARO which stated:

2

Stephen McGrath was admitted to this hospital on August 11, 1965 on a

Voluntary [sic] certification because of depression and excessive use of alcohol.

He had a history of alcoholism in the past, but had abstained for nine years prior

to admission. Shortly before admission, he had several operations for

appendicitis and peritonitis, and a laminectomy for fracture of the spine. At the

same time, his wife left him. He then became depressed, and started drinking

again.

....

On December 29, 1965, the patient was discharged from the hospital. Final

diagnosis was Without Mental Disorder, Alcoholism.

In January 1972, the VARO also obtained the records from Middletown State Hospital.

First, these records reviewed the appellant's prior medical history and noted that the appellant

had been treated at Benedictine Hospital in October 1953 for acute alcoholism, malnutrition,

and avitaminosis. The records revealed that the appellant was treated by a VA hospital in

September 1954 and diagnosed with "Emotionally Unstable Personality with addiction to drugs

and alcohol." The records indicated that an electroencephalogram performed in September

1964 showed gross abnormalities, suggesting encephalopathic process, and that he had been

treated for alcoholism in December 1964. Second, the records stated that the appellant was

admitted to Middletown State Hospital in February 1965. At this time, the appellant told his

treating physician that "he had to quit [the Navy] due to his drinking problem." After service,

the appellant related that he started his own dental practice and "was doing well except for his

habit of drinking alcohol and taking several drugs in order to quiet his nerves down." He stated

that since his discharge "his condition has been progressively deteriorating." The examining

psychiatrist found the appellant not to be psychotic but noted that he had been suffering from

auditory hallucinations. Finally, the records then indicated that the appellant was admitted

again in May 1965. Upon admission, the appellant's examining physician, Dr. Albert O. Rossi,

found him to be intoxicated polyneuritic due to alcoholism. Dr. Rossi diagnosed the appellant

with "Without Mental Disorder, Alcoholism." The appellant was readmitted to the hospital in

August 1968 with the same diagnosis.

The VARO also obtained medical records from a local VA facility where the appellant

had been receiving treatment for alcohol addiction, drug dependence, and schizophrenia in

August 1971. In February 1972, the VARO denied his claim for compensation for

schizophrenia. In March 1972, the appellant wrote a letter to his service representative which

3

repeated his earlier statements that he had received psychiatric care during military service. He

stated:

It seems incredible to me that my service medical records did not reveal this. As

a matter of fact . . . my health record was locked in [a] safe, to prevent

dissemination of the affair to the troops via someone's curiosity. I therefore

suggest a review of the military health records to illustrate these points.

The VARO treated this letter as a Notice of Disagreement (NOD) and processed his appeal to

the Board. In his substantive appeal to the Board, the appellant argued that "the underlying

cause of the addiction was the anxiety neurosis induced by the stresses of . . . [combat]."

Apparently, the Board never adjudicated this appeal.

In June 1978, the appellant was admitted to St. Albans Psychiatric Hospital for acute

alcohol intoxication. The appellant stated at the time of his admission that he had been sober

for over seven years. The report did not mention that the appellant suffered from any other

psychiatric or nervous condition. In August 1978, the appellant was admitted to a VA medical

center in Lyons, New Jersey for alcoholism. At the time of his admission, the appellant "was

intoxicated, confused, and spoke with slurred speech." The appellant reported auditory

hallucinations. In August 1978, the VARO determined that the appellant was 70% disabled

due to a non-service-connected nervous reaction.

In June 1992, the appellant filed a claim for PTSD. He alleged that he was admitted to

a U.S. Naval hospital in 1945 or 1946 for combat fatigue. In support of his claim, the

appellant submitted treatment records from a local VA medical facility dated June 1992 which

diagnosed him with depression, anxiety, alcohol addition, and PTSD of delayed onset and

moderate degree. The reports noted that the Gulf War had triggered "intrusive memories and

flashbacks of combat" which the appellant attempted to calm by using alcohol and drugs.

In October 1992, VA provided the appellant with a special PTSD examination

conducted by Dr. W.H. Matthew. Dr. Matthew found the appellant to be mildly anxious but

found his mood, affect, and thought processes to be normal. Dr. Matthew also noted that the

appellant did not display any signs of depression. He diagnosed the appellant with, inter alia,

anxiety disorder, history of alcohol dependence, and dependent personality traits. Dr. Matthew

did not specifically diagnose the appellant with PTSD but rated his Global Assessment of

Functioning (GAF) at 82.

4

In December 1992, the VARO denied his claim for PTSD and the appellant

subsequently initiated an appeal to the Board. In May 1993, a psychological examination team

at the post-traumatic stress program at the VA medical center in Mountain Home, Tennessee,

examined the appellant and provided a psychological assessment. The team consisted of

Barbara F. Key, a psychological examiner, Dr. Donald Henson, Jr., a staff psychiatrist, and Dr.

Charles L. Walter, a psychiatrist and coordinator of the program. The appellant reported to the

team that he had served as an anesthesiologist during combat operations in the Marshall

Islands, Saipan, and Iwo Jima. He stated that on several occasions he felt that he was in

immediate danger. He also reported that his alcohol use increased greatly during combat or

other stressful situations. The appellant reported to the team that he suffered from depression,

anxiety, decreased appetite, sleep disorder, and feelings of self-condemnation. The team found

the appellant's mood, affect, and thought process to be normal but noted that the appellant

appeared hypomanic in nature. The team report described his speech as "pressured and rapid

. . . jump[ing] from one subject to another trying to discuss his military involvement." The

report concluded that the appellant suffered from social and industrial impairment of a chronic

nature and rated his GAF at 50.

In July 1993, the appellant submitted a letter to the VARO from Dr. Alfred J. Bennett,

a physician specializing in osteopathy at a VA medical center. Dr. Bennett stated that after

reviewing the appellant's medical history he concluded that the appellant suffered from delayed

PTSD. In September 1993, after reviewing all of the evidence submitted since its previous

denial, the VARO granted service connection and assigned a 30% disability rating effective June

1992, the date the appellant had filed his claim for PTSD. In November 1993, the appellant

wrote a letter to the VARO and argued that he should be granted a 70% disability rating

effective August 1978. In February 1994, the VARO denied his claims for an increased

disability rating and an earlier effective date, and the appellant appealed that decision to the

Board.

In May 1994, the appellant submitted a letter from Dr. Henson. In his letter, Dr.

Henson stated that the appellant currently suffered from PTSD. Dr. Henson opined that in

1972, when the appellant had been diagnosed with schizophrenia, the appellant was "using large

amounts of alcohol, which in conjunction with [his] PTSD, could have presented with similar

5

symptoms. This may explain why you were given a diagnosis at the time of schizophrenia."

That same month, the appellant also submitted a letter from Dr. Robert H. Keiter. Dr. Keiter

stated that he had been treating the appellant since January 1994. Dr. Keiter stated, "You

related to me that you were diagnosed in the past with schizophrenia. In my experience with

you, at no time have you demonstrated symptoms indicative of the diagnosis of schizophrenia."

In August 1994, the appellant submitted another letter from Dr. Bennett. Dr. Bennett

concluded that the appellant had been suffering demonstrable and overt symptoms of PTSD

since May 1975 when he began treating the appellant.

From June 1995 to August 1995, the appellant was admitted to the Specialized Inpatient

Post-Traumatic Stress Disorder Unit at the VA medical center in Salisbury, North Carolina.

Dr. Robert N. Reynolds, the physician who completed the discharge report summarizing his

hospital course, stated that the appellant was alert, oriented, and cooperative at all times. Dr.

Reynolds found that the appellant had a history of emotional detachment, anger, intrusive

thoughts, nightmares, sleep trouble, anxiety, and depression. The appellant denied any

homicidal or suicidal ideations or hallucinations. Dr. Reynolds opined that at the time of his

admission, the appellant's GAF was 6, which he added was "catastrophic." Dr. Reynolds

diagnosed the appellant with PTSD and noted that the appellant's condition had "slightly

improved" over the course of his stay. He rated the appellant's GAF at 40 at the time of his

discharge. He concluded that the appellant "is unemployable due to PTSD and medical

problems." Finally, Dr. Reynolds noted that the appellant would continue PTSD treatment on

an outpatient basis.

In February 1997, the Board remanded the appellant's claim for further development and

order the VARO to determine whether or not the appellant was entitled to service connection

for schizophrenia. Pursuant to that remand, the VARO provided the appellant with a mental

examination in March 1997 conducted by Dr. S. Shattan. The appellant reported to Dr.

Shattan that he suffered from intrusive wartime recollections, difficulty with sleeping,

nightmares, flashbacks, feelings of isolation, and anxiety. He noted that he often had emotional

difficulty after watching war movies. After an extensive review of the appellant's medical history,

Dr. Shattan concluded:

Based on these findings it appears that the patient has a current diagnosis of

PTSD, delayed, chronic, moderate. . . . The veteran is showing some mild

6

symptoms, such as social withdrawal and insomnia, but, according to his own

description, he is generally functioning pretty well, has some meaningful

interpersonal relationships, pursues hobbies in which he is interested.

Dr. Shattan rated his current GAF at 70 but noted that the appellant "has shown improvement

from his previously more severe degree of disability and illness as a result of his treatments in

various VA inpatient and outpatient programs."

After reviewing this evidence, the VARO determined that the appellant was not entitled

to service connection for schizophrenia or an increased disability rating or an earlier effective

date for PTSD. Thereafter, the matter was returned to the Board. The Board initially

determined that the appellant's claim for schizophrenia was not well grounded. Regarding his

claim for an earlier effective date for PTSD, the Board found that the appellant had a pending

and unadjudicated claim for a nervous condition which would include a claim for PTSD since

January 1972. Nonetheless, the Board determined that the VARO did not receive evidence

which established that the appellant's nervous disorder was related to his military service until

1992, when he filed his claim for compensation for PTSD. The Board, therefore, found that

the appellant was not entitled to an earlier effective date. Finally, the Board reviewed the facts

of his claim under both the old and new ratings criteria for mental disorders and found that the

appellant was not entitled to a higher disability rating for his PTSD condition. Under the old

criteria, the Board concluded: "Although there is a conflict in the evidence, the preponderance

of the evidence tends to establish that the manifestations are subject to periods of acute

exacerbation, which the [sic] diminish and that overall, the impairment is no more than

definite." Under the new criteria, the Board concluded: "Here again, the medical records

provide a preponderance of the evidence showing that while there may be occupational and

social impairment with occasional decrease in work efficiency and intermittent periods of

inability to perform occupational tasks, the veteran is generally functioning satisfactorily."

II. ANALYSIS

A. Abandoned Claim

In his brief, the appellant states that he "formally withdraws his claim for schizophrenia.

The appellant does not believe that he has schizophrenia currently, or at any time during the

past." Essentially, the appellant contended that he had been misdiagnosed with schizophrenia

7

when he actually suffered from PTSD. The Court, therefore, will grant the appellant's motion

to withdraw his appeal and will consider this claim abandoned. See Bucklinger v. Brown, 5

Vet.App. 435, 436 (1993).

B. Increased Disability Rating

The Board's decision regarding the degree of disability under the rating schedule is a

finding of fact subject to the "clearly erroneous" standard of review. Johnson v. Brown, 10

Vet.App. 80, 84 (1997). The Court may not reject the Board's conclusion if it is supported by

a plausible basis in the record. Sanders v. Derwinski, 1 Vet.App. 88, 90 (1990); Gilbert v.

Derwinski, 1 Vet.App. 49, 53 (1990). The Court is not permitted to substitute its own judgment

for a factual determination made by the Board, even if it might not have reached the same

conclusion. Gilbert, 1 Vet.App. at 53.

At the time the appellant filed his claim for an increased disability rating, a 30% rating

for schizophrenia was warranted when there was "Definite impairment in the ability to establish

or maintain effective and wholesome relationships with people. The psychoneurotic symptoms

result in such reduction in initiative, flexibility, efficiency and reliability as to produce definite

industrial impairment." 38 C.F.R. § 4.132, Diagnostic Code (DC) 9411 (1992). A 50%

disability rating for PTSD was warranted when, "Ability to establish or maintain effective or

favorable relationships with people is considerably impaired. By reason of psychoneurotic

symptoms the reliability, flexibility and efficiency levels are so reduced as to result in

considerable industrial impairment." Id. A 70% disability rating was warranted when "Ability

to establish or maintain effectve [sic] or favorable relationships with people is severely impaired.

The psychoneurotic symptoms are of such severity and persistence that there is severe

impairment in the ability to obtain or retain employment." Id. Since the appellant filed

his claim for an increase, the criteria for disability ratings have been changed. Currently, a 30%

disability rating is warranted when:

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).

38 C.F.R. § 4.130, DC 9411 (1999). A 50% disability rating is warranted when:

8

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.

Id. A 70% disability rating is warranted when:

Occupational and social impairment, with deficiencies in most areas, such as

work, school, family relationships, judgment, thinking, or mood, due to such

symptoms as: suicidal ideation, obsessional rituals which 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.

Id.

When the law governing a claimant's disability rating changes while on appeal, as was

the case here, the claimant is entitled to have his claim considered under both sets of criteria

to determine which set is more favorable. See Karnas v. Derwinski, 1 Vet.App. 308 (1991). The

claimant is then entitled to be rated under the more favorable ratings. Id. In this case, the

Board determined that neither the old nor the new regulations were more favorable, as under

both sets of regulations, the appellant was not entitled to a disability rating higher than 30%.

Reviewing the matter under the old regulations, the Board noted that the appellant's PTSD

symptomatology "tends to establish that the manifestations are subject to periods of acute

exacerbation, which the [sic] diminish and that overall, the impairment is no more than

definite." After a review of the record on appeal, the Court finds a plausible basis in the record

for the Board's findings. Although the record demonstrates that the appellant's social and

industrial capability has been impaired by his PTSD, the Court cannot hold that the Board's

finding of "definite" rather than "considerable" impairment was clearly erroneous.

In a similar manner, the Board found that the appellant was not entitled to a higher

disability rating under the new regulation . After a review of the record on appeal, the Court

again cannot hold that the Board's findings were clearly erroneous. The record on appeal does

9

not reflect that the appellant suffered from any of the symptoms which would warrant a 50%

or higher disability rating.

None of the medical reports contained in the record on appeal indicated that the appellant

suffered from the symptoms which characterized a 50% or higher disability rating such as

flattened affect, impaired memory, impaired judgment, or mood disturbances.

In his brief, the appellant argues that his symptoms indicate that he is entitled to at least

a 70% schedular rating for PTSD. He argues that the Board erred by failing to consider all of

the evidence of record and by forming its own medical opinion which is not based in the record

on appeal. On the contrary, the Court finds that the Board's decision is clearly based on the

record on appeal. The appellant has not pointed to any evidence in the record which

establishes that he currently suffers from the symptomatology which characterizes a disability

rating higher than 30%. Therefore, the Board's finding that the appellant is not entitled to a

disability rating in excess of 30% is not clearly erroneous. In the alternative, the appellant

argues that he was entitled to the "benefit of the doubt" doctrine because there is an approximate

balance of positive and negative evidence in support of his claim. However, the Board found

that the preponderance of the evidence did not support an increased disability rating.

Therefore, the Board did not err in applying this doctrine. See Schoolman v. West, 12 Vet.App.

307, 311 (1999).

C. Earlier Effective Date

Under 38 U.S.C. § 5110(a), "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." The Board's decision regarding the effective date of an award

is also a finding of fact subject to the "clearly erroneous" standard of review. See Johnson, supra.

As noted above, the Court may not reject the Board's conclusion if it is supported by a plausible

basis in the record. See Sanders, supra. The Court is not permitted to substitute its own

judgment for a factual determination made by the Board, even if it might not have reached the

same conclusion. See Gilbert, supra. As always, the Board is required to provide adequate

"reasons and bases" for its decision. See 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.

In this case, the Board found that the appellant had a pending and unadjudicated claim

for a nervous condition which he had filed in 1972. Thus, that claim remains pending for the

10

purposes of the assignment of an effective date for that disability. Nonetheless, the Board

concluded that "the first competent evidence of PTSD was June 11, 1992. Since there was

already a pending claim, the effective date is set in accordance with the facts found; the date that

establishes the diagnosis with competent evidence." Regarding the doctor's statements presented

by the appellant which opined that the appellant had been suffering from PTSD since at least

1972, the Board held:

The creation of documents in 1994 does not serve to establish that the "facts"

existed prior to 1992. These are new facts created in 1994. The veteran has

presented no competent document that is dated (and received) prior to 1992 that

establishes the fact that he had PTSD. The Board does not challenge the

revision of the past diagnosis. However, that revision did not exist prior to 1992.

Therefore, the documents do not serve to establish an earlier effective date.

However, in an original claim for benefits, the date the evidence is submitted or received

is irrelevant when considering the effective date of an award. As noted above, the effective date

of an award "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. § 5110(a). Thus, when an original claim for

benefits is pending, as the Board found here, the date on which the evidence is submitted is

irrelevant even if it was submitted over twenty years after the time period in question. In this

case, the Board found that the appellant had an unadjudicated claim for compensation pending

since January 1972. This does not prevent the appellant from using this evidence, whatever

date it may be submitted, to support his claim for an earlier effective date in his original claim

for compensation.

In sum, the Court finds that this issue must be remanded to the Board for readjudication

of the effective date of the appellant's PTSD claim and to assign the appropriate disability ratings

if necessary. First, the Board must determine when the appellant's service-connected disability

manifested itself under the all of the "facts found," including the medical opinions in question,

and assign an effective date no earlier than January 1972. Of course, whether or not that

evidence submitted is credible and sufficient to support a determination that an earlier effective

date is warranted is a finding of fact for the Board to determine in the first instance. See Hensley

v. West, 212 F.3d 1255 (Fed. Cir. 2000). Second, if the Board has assigned an earlier effective

date of an award, the Board must assign the appropriate disability rating or ratings. Dependent

on the "facts found," this rating may be a constant rating if the disability has been consistent in

11

severity or a "staged" rating if the disability has fluctuated in severity. See Fenderson v. West,

12 Vet.App. 119 (1999).

III. CONCLUSION

After consideration of the pleadings and a review of the record, the Court holds that the

appellant has not demonstrated that the Board committed either legal or factual error which

would warrant reversal or remand on the issue of an increased disability rating for his PTSD

condition. The Court is satisfied that the Board fulfilled the "reasons and bases" requirements

of 38 U.S.C. § 7104(d)(1) on that issue. To the extent it denied an increased disability rating,

the Board's decision is AFFIRMED.

Regarding the appellant's claim for an earlier effective date for his PTSD condition, the

Board's decision on that issue is VACATED and the matter is REMANDED for readjudication

consistent with this opinion.

The appeal relating to the issue of a claim for schizophrenia is DISMISSED.

STEINBERG, Judge, concurring in part and dissenting in part: I concur in that portion

of the majority opinion permitting the appellant to withdraw his appeal as to schizophrenia (part

II.A.), and I concur in the decision of the Court to remand the claim for an earlier effective date

for the award of Department of Veterans Affairs (VA) service connection for the veteran's post-

traumatic stress disorder (PTSD) (part II.C.). I do not agree with the Court's affirmance (part

II.B.) of what the Court considers to be a claim for an increased rating for PTSD. Rather, I

believe that that claim is an appeal from an initial rating determination, and that the October

21, 1998, decision of the Board of Veterans' Appeals (Board or BVA) should be vacated as to

that matter as well as to the claim for an earlier effective date for the veteran's PTSD. My

reasoning follows.

I. Background

I basically agree with the relation of the facts in part I. of the Court's opinion. However,

I believe that the content of the August 1994 letter from Dr. Bennett should be set forth in

greater detail, because that letter is of critical importance to the adjudication of this appeal. In

that letter, Dr. Bennett explained that the "[p]revious diagnosis of latent schizophrenia" that had

12

been made in 1970 "was evidently provisional at the time due to circumstances and probably

a narrow range of mental disorders for disability." Record (R.) at 370. He stated:

I have been personally involved in [the veteran's] treatment since May 1975 and

at no time ha[s he] demonstrated evidence of schizophrenia.

[The veteran has] demonstrated overt symptoms of [PTSD] since that time. This

has become more evident as the medical community has progressively become

more aware of [PTSD] and its ramification.

Ibid.

II. Analysis

A. P TSD D isab ility R ating as o f 1992

I believe that it is indisputable that the Board erred in this case by construing the

veteran's claim as one for an increased rating rather than as one based on an original claim for

service connection. In September 1993, a VA regional office (RO) first determined that the

veteran suffered from service-connected PTSD and assigned a 30% rating. R. at 333-38. The

veteran then, in November 1993, filed a Notice of Disagreement (NOD) as to that September

1993 VARO decision; the NOD stated: "I am herewith submitting VA Form 21-4138 [, a VA

Statement in Support of Claim,] for the purpose of having my disability percentage calibrated

at 70% retroactive to 8/16/78." R. at 347. After receiving the veteran's NOD, the RO in

February 1994 denied both a higher rating and an earlier effective date for the award of service

connection for PTSD. R. at 350. Thus, the initial RO determination as to the proper effective

date and rating for the veteran's claim of service connection for PTSD has never been resolved,

and the issue before the Board in the decision on appeal was not whether he was entitled to an

increased rating but rather whether he was entitled to a higher initial rating.

Because the Board mistakenly adjudicated the instant appeal as an increased-rating claim,

it appears that the Board considered only the most recent evidence of record and did not

consider whether, based on all of the evidence of record -- especially the Global Assessment of

Functioning Scores of "6, catastrophic" and "40" recorded on the August 1995 VA hospital

discharge summary (R. at 493) -- the veteran might have been entitled to a higher rating, or a

"staged" rating under Fenderson v. West, 12 Vet.App. 119, 126 (1999). Compare Francisco v. Brown,

7 Vet.App. 55, 58 (1994) ("[w]here entitlement to compensation has already been established

13

and an increase in the disability rating is at issue, the present level of disability is of primary

importance"), with Fenderson, supra (holding that Francisco "is not applicable to the assignment

of an initial rating for a disability following an initial award of service connection for that

disability" and that "staged" ratings may be assigned as to an initial rating when the rated

condition shows fluctuation in severity). Hence, I would vacate the BVA decision on this issue

as well, so that, on remand, the Board would be required to consider all of the evidence of

record in assigning an initial rating to the veteran's service-connected PTSD.

B . Earlier Effective D ate

I agree with the majority's conclusion that the Board's concession that the veteran had

filed a claim in January 1972 that was "sufficiently broad to specifically cover a claim for [service

connection for] PTSD" (R. at 10) required the application of Fenderson, supra, in terms of

whether the veteran should be afforded a staged rating effective as early as the date of the

pending 1972 claim. I write separately to set forth my rationale for reaching that conclusion

in the context of the applicable law and regulation, analogous caselaw, and facts of this case.

As the majority indicates, "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. § 5110(a). I note as well that, pursuant to the

applicable VA regulation, 38 C.F.R. § 3.400(b)(2) (1999), the effective date for an initial rating

assigned as to an original claim shall be the "date of receipt of claim, or date entitlement arose,

whichever is later," unless the claim was received within one year after the claimant's separation

from military service. Thus, the majority correctly recognizes that the 1972 claim (R. at 163)

"remains pending for the purposes of the assignment of an effective date for the disability that

is the subject of that January 1972 claim", ante at 10; see Hanson v. Brown, 9 Vet.App. 29, 31

(1996) (noting that an effective date for a claim filed in 1991 could be "anchored" in an

unadjudicated claim filed in 1984).

Rather than consider the date of the January 1972 claim as the possible effective date for

the award of service connection and thus as a possible effective date for any rating (staged or

otherwise) assigned to that original claim, the Board concluded that the 1994 statements from

three VA physicians -- Dr. Henson (R. at 368 (noting that veteran's alcohol use in 1972 "may

explain" why he was "given a diagnosis at that time of schizophrenia")), Dr. Keiter (R. at 369

14

(stating that veteran has "at no time . . . demonstrated symptoms indicative of the diagnosis of

schizophrenia")), and Dr. Bennett (R. at 370 ("I have been personally involved in [the veteran's]

treatment since May 1975 and at no time ha[s he] demonstrated evidence of schizophrenia")) --

could "not serve to establish that the 'facts' existed prior to 1992" (R. at 12) so as to support an

earlier effective date based on "facts found", 38 U.S.C. § 5110(a); see also 38 C.F.R.

§ 3.400(b)(2). In concluding that these medical statements indicating, retrospectively, that the

veteran's PTSD existed in 1972 or 1975 did not comprise evidence to support a factual predicate

prior to the date that those same statements were p rep ared, the Board failed to apply the specific

language in section 5110(a) as well as to apply -- or even cite to -- its own regulation, 38 C.F.R.

§ 3.400(b)(2). Neither section 5110(a), which requires that the effective date of an initial rating

assigned as to an original claim be set in accordance with either the date of the claim or "the

date entitlement arose", nor the applicable regulation, which requires that the effective date be

based on either the date of the claim or "facts found", even suggests that the effective date is

limited to the date of the actual preparation of the evidence upon which the rating is assigned.

Moreover, this Court has approved the use by the Board of retrospective medical

evidence in the assignment of staged ratings. For example, in Meeks v. West, the Board had

assigned an initial rating of 100% beginning in January 1985 rather than the date of the claim

(in December 1969) based in part on an August 1998 medical expert opinion providing a

judgment as to the level of claimed disability "shown at any given period of time between

December 1969 and January 1985". Meeks, 12 Vet.App. 352, 354, en banc review denied,

13 Vet.App. 40 (1999), aff'd, __ F.3d __, No. 99-7137 (Fed. Cir. June 27, 2000). The Court

in Meeks affirmed that BVA decision as not clearly erroneous. Meeks, 12 Vet.App. at 355.

Surely, if retrospective evidence can be considered as a basis for the denial of an earlier effective

date, then retrospective evidence must be appropriate for consideration in terms of the award

of an earlier effective date as well.1

In addition, in Savage v. Gober the Court approved the use of retrospective evidence for

the purpose of a claimant's demonstrating continuity of symptomatology in order to establish

1

In d eed , to h old th at 38 U .S .C . § 5110(a) requ ires th at retrospective evid en ce m ay b e u sed on ly to d en y

a claim for an earlier effective d ate b ut n ot to gran t su ch a claim w ou ld b e co n tra ry to th e prin ciple th at an y

in terpretative doubt as to th e possible m ean in g of a statutory p rovision "is to be resolved in th e veteran 's favor".

Brown v. Gardner, 513 U .S . 115, 118 (1994).

15

service connection under 38 C.F.R. § 3.303(b) (1999). Savage, 10 Vet.App. 488, 497 (1997)

(noting that "limitations on dating and type of evidence have been found in only the few

instances where there has been clear regulatory guidance to that effect" (citations omitted)). In

the regulatory language in question in the instant case,2 there is no guidance to suggest that

"limitations on dating and type of evidence", ibid., should be imposed in the present context,

and, moreover, 38 U.S.C. § 7104(a) requires that Board decisions be based on "consideration

of all evidence and material of record", without limitation.

It is reasonable to interpret the applicable law and regulation as permitting the

assignment of an effective date prior to the date of the creation of the three VA doctors' 1994

statements (R. at 368-70) if such a result can be reached based on the "facts found" from the

entire record on appeal. For example, if there are no facts showing that the veteran has ever

in his life "demonstrated evidence of schizophrenia", that finding of fact might support Dr.

Bennett's conclusion, based on his "personal involve[ment] in [the veteran's] treatment since

May 1975", that the veteran has never been schizophrenic but rather has had PTSD "since that

time". R. at 370; see also R. at 369 (Dr. Keiter's statement that the veteran has "at no time . . .

demonstrated symptoms indicative of the diagnosis of schizophrenia"). Similarly, if the facts

show that the veteran may in fact have been misdiagnosed, based on his alcohol use, as having

schizophrenia in 1972, as postulated by Dr. Henson (R. at 368), then an earlier effective date

may be warranted based on such facts found. Hence, the Board was required to resolve in favor

of the veteran any interpretative doubt as to the possible consideration of retrospective evidence

in connection with the "facts found" provision of section 5110(a). See, e.g., Dippel v. West,

12 Vet.App. 466, 472 (1999) (quoting "the injunction of the Supreme Court in Brown v. Gardner

. . . : '[I]nterpretive doubt is to be resolved in the veteran's favor'". Gardner, 513 U.S. 115, 118

(1994)"); see also Allen v. Brown, 7 Vet.App. 439, 448 (en banc) (applying Gardner to resolve

interpretative doubt in veteran's favor).

Finally, I note the Board's erroneous citation of the Court's opinion in Williams v. Gober,

10 Vet.App. 447 (1997), in support of its conclusion that "an effective date should not be set

prior to the creation of competent evidence establishing the existence of the particular disease

or injury". R. at 11. In that case, the Court affirmed as not clearly erroneous a BVA

2

I.e., 38 C .F.R . § 3.400(b)(2) (1999).

16

determination that the date of a medical record of the veteran's first admission to a hospital,

which the Board found had served as an informal claim for service connection for that

disability, was the appropriate effective date for a subsequent award of service connection based

on that informal claim. Williams, 10 Vet.App. at 452. There, the Board found, as a matter of

fact, that the date of the veteran's hospitalization was the first point in time at which it could

ascertain, based on the medical evidence of record, that the veteran actually had the disability

at issue in that case. Because the medical evidence at issue in Williams was not retrospective and

no medical evidence suggested an earlier manifestation of that disability, Williams does not

provide support for the legal conclusion for which it was cited by the Board.

III. Conclusion

For the foregoing reasons, the BVA decision should be vacated both on the matter of

the proper effective date for the award of service connection based on the veteran's PTSD claim

as well as on the matter of the proper rating for that service-connected disability and both

matters remanded for readjudication consistent with Fenderson, supra.

17