Veteranclaims’s Blog

May 23, 2014

Single Judge Application; Murphy v. Shinseki, 26 Vet.App. 510(Apr. 4, 2014); Increased Disability Compensation Carries Substantive Rights and Safeguards

Excerpt from decision below:

“Because after November 2006 no evidence was added to the record that showed either that the nature of the appellant’s employment prior to May 2003 was different than that discussed in 2006 by the Board or that the appellant’s employment was not in a protected work environment prior to May2003, the Court is, as was the Board in 2012, bound by the November 2006 Board decision that awarded TDIU on the basis that the nature of the appellant’s employment constituted a protected work environment under § 4.16(a). See Murphy v. Shinseki, 26 Vet.App. 510, __ [pinpoint citation not yet available], No. 12-1700, 2014 WL 1327898, at *4 (Apr. 4, 2014) (holding that “an increase in disability compensation, unlike a favorable finding of fact or law that  does not itself confer
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entitlement to benefits, carries with it substantive rights and procedural safeguards that cannot be easily discarded in the name of de novo Board adjudication”). “

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-2616
HENRY M. OSOWIECKI, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, veteran Henry M. Osowiecki, appeals through
counsel
an August 8, 2012, decision of the Board of Veterans’ Appeals (Board) that (
1) determined that the
appellant was not entitled to an effective date earlier than May 8, 2003,
for a total rating based on
individual unemployability (TDIU) due to his service-connected post-
traumatic stress disorder
(PTSD) and (2) denied entitlement to a rating in excess of 10% for PTSD
for the period from
April 1, 1969, to May 19, 1997. Record (R.) at 3-49.1
Both parties filed briefs, and the appellant
filed a reply brief. This appeal is timely, and the Court has jurisdiction
to review the Board decision
pursuant to 38 U.S.C. § 7252(a). A single judge may conduct this review
because the outcome in
this case is controlled by the Court’s precedents and “is not reasonably
debatable.” Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons, the
Court will reverse the
Board’s determination that the criteria for an award of TDIU prior to May
8, 2003, have not been
met, and remand the matter with the direction that the Board ensure that
an effective date not later
than April 2000 is assigned and that the Board determine whether a date
earlier than April 2000 is
The appellant has a 70% rating for PTSD, effective from May 20, 1997. The
Board’s denial of a schedular
rating in excess of 70% for the period on and after May 20, 1997, is not
being challenged on appeal. The appellant did
not contest the Secretary’s assertion in his brief to this effect.
Secretary’s Brief (Br.) at 1; see Reply Br. at 1-3.
1

warranted. The Court will vacate the Board’s decision regarding a rating
in excess of 10% for PTSD
for the period from April 1, 1969, to May 19, 1997, and remand the matter
to the Board for
readjudication.
I. BACKGROUND
Mr. Osowiecki served honorably on active duty in the U.S. Army from
December 1965 to
December 1967, including a tour of combat duty in Vietnam. Record (R.) at
4, 1360. He received
a Purple Heart with two Oak Leaf Clusters, a Combat Infantryman Badge, a
Vietnam Service Medal
with Bronze Service Star, and the Republic of Vietnam Campaign Medal. R.
at 2532. In a
December 1967 VA regional office (RO) decision he was granted service
connection for anxiety
reaction, assigned a 10% disability rating, and awarded noncompensable
evaluations for various
shrapnel wounds incurred in combat. R. at 2606-07. His combined rating was
10%.
On January 20, 1969, Mr. Osowiecki was examined by a VA physician, who
recorded his
complaints of nightmares; inability to sleep; being startled by sudden
noises, particularly gunfire;
and noted that Mr. Osowiecki described himself as still nervous since
service. R. at 2602. The
report noted that “[t]here is more than casual evidence of anxiety
reaction.” R. at 2604.2
Shortly
thereafter, in an April 1969 VA examination report, a psychiatrist
recorded essentially the same
complaints and gave a diagnosis of a sleep disorder that was manifested by
frequent nightmares.
R. at 2586-87.
The following month, the RO reduced his 10% rating for anxiety reaction to
noncompensable. R. at 2584-85. This Court determined that the rating
reduction was imposed
without proper notice to Mr. Osowiecki and, on remand, the Board
determined the RO decision to
be void ab initio, and the 10% was restored, effective April 1, 1969. R.
at 1165 (Mar. 17, 2010,
Board decision); 1240-47 (June 29, 2009, Court decision in No. 07-0524).
The Board also
Although the report referred to a separate report “by Dr. Bergmann” (R. at
2604), Dr. Bergmann’s report is
not in the record. This omission from the record is not prejudicial to the
appellant based on the Court’s direction that the
matter be remanded. On remand, the appellant will have the opportunity to
raise this as an issue or otherwise to pursue
the procurement of this report.
2
2

concluded that Mr. Osowiecki has a claim for an increased rating for PTSD
that “should be
considered as having been filed April 1, 1969, the date of the VA
examination.” R. at 1169.
The record includes a January 1997 Connecticut Department of Labor
decision that noted
that an employee of the construction company walked off the job after an
extremely loud burst of
yelling and use of profanities by Mr. Osowiecki at the employee. R. at
2484-85. The labor decision
noted that Mr. Osowiecki had “elected to indulge his emotions by adopting
the method of loud,
obscene, public, screaming sessions as a ‘not uncommon’ method of
reprimand.” R. at 2485. The
decision also noted that Mr. Osowiecki had stated that it was the
employee’s chatting with a
coworker that had prompted him “to explode into rage.” R. at 2484.
The following May, Mr. Osowiecki sought treatment at a VA medical center
for exacerbated
anxiety and depression. R. at 2472. At this time, he began treatment with
Dr. Andrew Meisler, a
licensed VA clinical psychologist who reported the impression of “severe
PTSD complicated by
majordepressiveepisode”withnotations ofa”[l]ong [historyof] OC [(obsessive
compulsive)] traits
(extremely organized) used to help cope and remain ‘strong’ and ‘in
control'” and of the experiencing
of exacerbated anxiety and depression because these coping strategies were
no longer effective. Id.
Progress notes dated in August 1997, April 1998, and May1999 noted that Mr.
Osowiecki had been
experiencingexacerbated PTSD symptoms, including becoming “explosive”
after an argument with
his wife and several recent angry outbursts in public settings. R. at 2026.
Mr. Osowiecki underwent a VA examination in September 1999. R. at 2560-65.
The
examiner concluded that Mr. Osowiecki “had a significant combat experience
in Vietnam with
exposure to brutality and carnage such that he now has verysignificant
symptoms of [PTSD].” R. at
2564. The examiner recorded that Mr. Osowiecki was “extremely concerned
about the impulsive
and explosive nature of his temper and the verbal outrage that he can
experience and project onto
others.” R. at 2564-65. The examiner noted that Mr. Osowiecki was aware “
that his symptoms have
been quite significant and interfered in his home, life, and work.” R. at
2562. He was given a GAF
score of 50. R. at 2564.
In March 2000, the RO reclassified the psychiatric condition as PTSD and
increased Mr.
Osowiecki’s rating to 30%, effective from May 5, 1999. R. at 2530-33. Mr.
Osowiecki appealed.
R. at 2462-98, 2526-27. He submitted statements from himself and family
members discussing the
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sheltered nature of his employment within the family construction
business, which he owns with his
wife, and describing how each family member acts as a buffer to separate
him from others when he
experiences rages while at work and discussing how he could not work for
anyone else because of
his rages. R. at 2474-79.
During an August 2000 RO hearing, Mr. Osowiecki testified about his
symptoms and
treatment since 1997.
R. at 2415-442.
His daughter, Dr. Dana Osowiecki, provided her
qualifications as a clinical psychologist and stated that he would not be
able to handle a different job.
R. at 258-59, 317. His wife testified that about the “decline” in his
condition, his becoming more
depressed, his altercations with various public officials, and her opinion
that he “could not work for
someone else.” R. at 2393-94.
In February 2002, the RO increased the PTSD rating to 50% effective May 5,
1999. R. at
2226-28. As part of his appeal, Mr. Osowiecki submitted letter opinions
from Dr. Meisler. R. at
2067, 2210-13, 2305. Dr. Meisler described Mr. Osowiecki’s symptoms and
stated that Mr.
Osowiecki “would havegreat difficultyfunctioningvocationallyin
anyemploymentsettingin which
he had to take direction from others. ” R. at 2067. He noted his self-
employment and difficulties at
work and stated: “Although he has never tried to work in any other context,
I doubt strongly that he
would be able to tolerate a vocational environment that was not protected
in this way.” Id.
In May2003, Mr. Osowiecki submitted a formal application for TDIU in which
he noted that
his PTSD affected his employment beginning in December 1967, that he first
began treatment in
1997, and that he earns $5,280 per month at the construction company. R.
at 2035-38. That same
month, he underwent a VA examination and, after discussing his symptoms,
the examiner opined
that “he could not be employed [if] he did not have his own business.” R.
at 2019.
In September 2003, the RO increased the rating for PTSD to 70%, effective
from March
2002, and denied TDIU. R. at 1970-74. Mr. Osowiecki testified in January
2004 before the RO and
expressed the opinion that he could not be employed outside the family
business. R. at 1880-95.
Dr. Dana Osowiecki provided statements dated in January 2005 and May 2008
in which she
recounted working in the family business from 1984 through 1990 and
observed her father directly
in the work environment and opined that her father could not be employed
anywhere else besides
the sheltered family environment. R. at 223-24, 1372-75.
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In November 2006, the Board issued a decision that (1) increased the
rating for the PTSD to
70%, effective May 20, 1997; and (2) awarded TDIU. R. at 1557-78. The
Board based its award
of TDIU on its conclusion that Mr. Osowiecki worked in a sheltered
environment and explained the
“uncontradictedclinicalevidencethat[Mr.Osowiecki] couldnot beemployedany[]
whereotherthan
in his familyrun business.” R. at 1575. The following month, the RO
implemented the TDIU award
by assigning an effective date of May 8, 2003, based on the date that he
submitted his formal TDIU
application. R. at 1552. Mr. Osowiecki timelyappealed the effective dates
assigned (R. at 1448-54,
1475-79, 1541-45), and both matters were ultimately remanded by this Court
in July 2009 (No. 07-
0524) and in September 2009 (No. 08-2361). R. at 1213-18, 1240-47.
On remand, private medical opinions were added to the record, including a
July 2009 report
from Dr. Meisler, who stated that Mr. Osowiecki’s employment had been in a
protected environment
and opined that “it is more likely than not, [Mr. Osowiecki’s] condition
has not changed appreciably
since his military discharge” (R. at 1206), and private psychologist
reports from October and
November 2009 in which the examiner opined that Mr. Osowiecki’s PTSD
severely affected his
social and occupational functioning, that his PTSD should result in a 100%
service-connected
disability, and that his PTSD was at that level in 1969 based on the
testimony of Mr. Osowiecki,
familymembers,employees,andthoseindividuals conductingexaminations in
1967and 1969. R. at
1177-93.
Following a Board hearing in November 2010 (R. at 334-76), the Board
issued a decision in
July 2011 denying (1) a rating in excess of 10% for PTSD for the period
prior to May 20, 1997; and
(2) a date earlier than May 8, 2003, for TDIU. R. at 1066-99. In December
2011, this Court (under
Docket No. 11-2239) granted the parties’ joint motion for remand based on
the Board’s inadequate
statement of reasons or bases for finding Mr. Osowiecki’s testimony not
credible. R. at 98-104.
On remand, Mr. Osowiecki submitted a May 2012 private vocational
assessment in which
Dr. Judith Drew concluded that, based on the records of his treating
physicians, independent medical
and psychological evaluations, and the testimony of his family, Mr.
Osowiecki “was not capable of
gainful employment in the general economy from 1969 to 2003″ and that he “
maintained
employment for the last 36 years due to the intense support and
interventions of his family and
employees in a protected work environment.” R. at 76.
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The Board issued the decision on appeal in August 2012 denying a rating
higher than 10%
prior to May 20, 1997, and denied TDIU prior to May 8, 2003. R. at 3-51.
This appeal followed.
II. ANALYSIS
A. TDIU Prior to May 8, 2003
The appellant argues that the Board erred in assigning May 2003 as the
effective date for the
award of TDIU benefits based on his PTSD.
Specifically, he contends that the evidence
demonstrates that he has only been capable of work in a “protected
environment,” pursuant to
38 C.F.R. § 4.16(a), since his discharge in 1969 and TDIU should have
been awarded from this time.
Appellant’s Br. at 23-27; Reply Br. at 1-2. The appellant contends that
the Board’s finding that his
occupation involved active management of a small business on a dailybasis”
does nothingto prevent
an award of TDIU under the relevant regulation” and that the Board had
previously conceded that
his employment was marginal when it awarded TDIU in November 2006. App. Br.
at 24-26. The
appellant seeks reversal of the Board’s denial of an earlier effective
date for TDIU because “a fair
reading of the evidence only leads to the conclusion that [his] PTSD
prevented him from working
in anything but a sheltered environment for the period on appeal.” App. Br.
at 26.
The Secretary contends that reversal is not appropriate because the
evidence of record
“supports the view that Appellant’s psychiatric disability worsened over
the decades until the
evidence of symptoms painted a severe enough picture to support the
conclusion that Appellant was
working in a sheltered environment in 2003.” Secretary’s Br. at 19-20. The
Secretary posits that the
appellant’s reliance on the November 2006 Board decision that found his
employment to be
“marginal” is misplaced because, although the Board granted TDIU, it did
not make any findings as
to when the marginal or sheltered employment began. Id. at 21-22 (citing R.
at 1575).
The Board’s determination of the proper effective date for an award of VA
benefits is a
finding of fact that the Court reviews under the “clearly erroneous”
standard of review set forth in
38 U.S.C. § 7261(a)(4). See Evans v. West, 12 Vet.App. 396, 401 (1999);
Hanson v. Brown,
9 Vet.App. 29, 32 (1996). A finding of material fact is clearly erroneous
when the Court, after
reviewing the entire evidence, “is left with the definite and firm
conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948);
see also Gilbert v.
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Derwinski, 1 Vet.App. 49, 52 (1990). With respect to anyfinding on an
issue of material fact or law,
the Board must provide an adequate statement of reasons or bases that
enables a claimant to
understand the precise basis for its decision and facilitates review in
this Court. See 38 U.S.C.
§ 7104(d)(1); Gilbert, 1 Vet.App. at 57.
Generally,foranoriginal claimoraclaimreopenedafterfinaladjudication,
theeffectivedate
can be no earlier than the date of the claim. See 38 U.S.C. § 5110(a).
The effective date for an
increased evaluation is generally the “date of receipt of the claim [for
increase] or the date
entitlement arose, whichever is later.” 38 C.F.R. § 3.400(o)(1) (2013);
see 38 U.S.C. § 5110(a).
This Court has held that, pursuant to regulation, certain medical records
demonstrating a worsening
in a veteran’s disability that is already service connected may constitute
an informal claim for an
increased disability rating for that disability. See 38 C.F.R. § 3.157(b) (
2013); see also Massie v.
Shinseki, 25 Vet.App. 123, 131-32 (2011) (discussing the requirements of §
3.157(b)).
Pursuant to 38 C.F.R. § 4.16(a), TDIU is warranted when a veteran who is
unable to secure
or follow a substantially gainful occupation as a result of service-
connected disabilities has either
one service-connected disability rated at least 60% disabling or multiple
service-connected
disabilities yielding a combined rating of 70% (with at least one of those
disabilities rated 40% or
more). The VA regulation also provides:
Marginalemploymentshall not beconsideredsubstantiallygainfulemployment.
For
purposes of this section, marginal employment generally shall be deemed to
exist
when a veteran’s earned income does not exceed the amount established by
the U.S.
Department of Commerce, Bureau of the Census, as the poverty threshold for
one
person. Marginal employment may also be held to exist, on a facts[-]found
basis
(includes but is not limited to employment in a protected environment such
as a
family business or sheltered workshop), when earned annual income exceeds
the
poverty threshold.
38 C.F.R. § 4.16(a) (2013) (emphasis added).
In the case of TDIU, this Court has noted that a request for TDIU is not a
freestanding claim;
rather, where there is evidence of unemployability, it is properly
considered a part of the claim for
benefits for the underlying disability. See Rice v. Shinseki, 22 Vet.App.
447 (2009). In Rice, the
Court held that
a request for TDIU, whether expressly raised bya veteran or
reasonablyraised bythe
record, is not a separate claim for benefits, but rather involves an
attempt to obtain
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an appropriate rating for a disability or disabilities, either as part of
the initial
adjudication of a claim or, if a disability upon which entitlement to TDIU
is based
has already been found to be service connected, as part of a claim for
increased
compensation.
Rice, 22 Vet.App. at 453-43. The Court further explained that “[w]hen
entitlement to TDIU is raised
during the adjudicatory process of the underlying disability or during the
administrative appeal of
the initial rating assigned for that disability, it is part of the claim
for benefits for the underlying
disability.” Id. at 454. Consequently, a separate formal claim for TDIU is
unnecessary in either the
context of an appeal from an initial rating or in the context of an appeal
of an increased-rating claim.
In Rice, this Court further stated that “if VA incorrectlydescribes
evidence of TDIU as a new
claim for increase, rather than as part of a pending claim for an initial
rating, the veteran will be
deprived of the benefit of the application of § 3.156(b) in determining
any effective date.” Rice,
22 Vet.App. at 454. The Court explained:
In the context of TDIU, new evidence of unemployability related to the
underlying
condition submitted within one year of the assignment of an initial rating
that is less
than the maximum sought mayconstitute new and material evidence under 38 C.
F.R.
§ 3.156(b). New evidence that shows unemployability relating to the
underlying
condition during the pendency of the original claim is material on its
face. Cf.
Voracek v. Nicholson, 421 F.3d 1299, 1305 (Fed. Cir. 2005) (concluding, as
a matter
of law, that veteran’s statement that his condition “worsened” alone
failed to meet the
definition for materiality set forth in 38 C.F.R. § 3.156 because it did
not, on its face,
relate in any way to his condition during the pendency of his original
claim or to any
other unestablished fact necessary to substantiate his original claim).
When
entitlement to TDIU is raised during the adjudicatory process of the
underlying
disability or during the administrative appeal of the initial rating
assigned for that
disability, it is part of the claim for benefits for the underlying
disability. And, when
it is raised during the one-year appeal period following a decision on the
claim, VA
is required to consider the potential applicability of 38 C.F.R. § 3.156(
b).
Rice, 22 Vet.App. at 454.
Here, although the appellant submitted a formal claim for increased
compensation based on
unemployability resulting from his PTSD in May 2003, a formal application
was not required
because he had pending at that time a claim for an increased rating for
PTSD. It is undisputed that
the appellant’s claim for an increased rating for PTSD was pending since,
at least, April 1969 when
a VA examination was conducted to determine the severityof his PTSD. As
noted above, the Board
8

has already determined that the appellant has a claim for an increased
rating for PTSD that “should
be considered as having been filed April 1, 1969, the date of the VA
examination.” R. at 1169. The
appellant submitted evidence of unemployability in May 2000, during the
one-year appeal period
following the March 2000 RO decision that increased his rating to 30% for
his service-connected
PTSD (R. at 2530-33, 2474). Accordingly, VA was required to consider a
TDIU request as early as
when evidence of unemployability was submitted and, pursuant to Rice, the
matter of TDIU is
considered part of the claim for an increased rating for the underlying
condition upon which TDIU
is based.
1. Retrospective Evidence of TDIU
The appellant notes that, in May 2000, as part of his Substantive Appeal
in seeking a rating
higher than 30% for his PTSD, he submitted his statement and those of
family members explaining
how the family members acted as buffers between him and others involved in
the business, how
those family members interceded when he went into rages, and how he cannot
work elsewhere.
Appellant’s (App.) Brief (Br.) at 3; R. at 2473-79. The appellant
discusses evidence predating the
2000 evidence, such as the September 1999 examination report that recorded
the impulsive and
explosive nature of his temper and relies on the reports from Dr. Drew and
Dr. Curran as evidence
supporting the fact that he has been able to work only in a protected
family business environment
since his discharge from service. R. at 60-89, 1177-93.
These medical reports, submitted to VA in 2009, provided a retrospective
psychological
evaluation of the appellant. Retrospective medical opinions can be used to
establish the severity of
a veteran’s past symptoms for the purposes of assigning a disability
evaluation. See Chotta v. Peake,
22Vet.App.80,84-85(2008)(holdingthat,in certaincircumstances,VA’s dutyto
assist mayinclude
providing the veteran with a retrospective medical opinion and ordering
the Board to consider
whether such an opinion was necessary to evaluate the severity of Mr.
Chotta’s PTSD symptoms
from 1947 to 1997).
In this case, the appellant raised the issue of TDIU and presented
evidence on the issue of
unemployability during the processing of his claim for an increased rating
for PTSD and has
contested the rating for his condition continually since his initial
appeal of the 30% rating assigned
by the RO in March 2000 based on the 1969 claim for an increased rating.
Because the appellant
9

was challenging the disability rating assigned for the disability upon
which he based his assertion
of unemployability, i.e., his service-connected PTSD, the determination of
whether he was entitled
to TDIU is properly considered part of that pending claim. See Rice, 22
Vet.App. at 454-55; see also
Norris v. West, 12 Vet.App. 413, 421 (1999) (holding that TDIU is raised
where VA’s received
hospitalization and medical examination reports indicating unemployability
and appellant met
schedularratingunder§4.16(a)). Althoughtheappellant’s
evidenceregardingmarginalemployment
was not submitted to VA in 1969, the issue of TDIU is part of the
evaluation for the underlying
condition upon which TDIU is based, see Rice, 22 Vet.App. at 452-54, and
VA may assign an
effective date that is the date the claimant submitted a claim for the
underlying condition. See
Mayhue v. Shinseki, 24 Vet.App. 273, 281-82 (2011) (finding that, in a
TDIU request submitted as
part of an initial application for disabilitycompensation, the Board
should have considered evidence
of unemployability and an effective date for TDIU as of the date the
claimant submitted the
underlying initial disability claim); 38 C.F.R. §3.156(b) (2013) (“New
and material evidence
received prior to the expiration of the appeal period, or prior to the
appellate decision if a timely
appeal has been filed . . . will be considered as having been filed in
connection with the claim which
was pending at the beginning of the appeal period.”).
The effective date for TDIU in the instant case, one that is a type of
increased-rating claim,
is assigned based on the earliest date it is factually ascertainable that
an increase in disability
occurred, provided that the claim is made within one year of this date, or
otherwise the date of the
claim or the date the disability arose, whichever is later. See 38 U.S.C. §
5110(b)(2); 38 C.F.R.
§ 3.400(o)(2); see also Dalton v. Nicholson, 21 Vet.App. 23, 32-34 (2007) (
holding that a TDIU
claim based on an alreadyservice-connecteddisabilityis an increased-
ratingclaim for effective-date
purposes).
Here, the appellant’s claim for the highest rating based on his PTSD may
provide a basis for
an earlier effective date if it was “factually ascertainable” that an
increase in disability warranting
TDIU was shown.
In the decision on appeal, the Board observed that it need not determine
when a TDIU
“claim” was submitted because May8, 2003, was the “earliest date
entitlement to a TDIU is shown.”
R. at 44. Specifically, the Board stated:
10

At the outset, the Board need not determine whether an earlier date of
receipt of
claim [i.e., earlier than May8, 2003,] exists in this case because the
effective date for
the award of TDIU in this case is determined bywhen entitlement to TDIU is
shown.
Regardless of the date of claim for TDIU, the award of that benefit may
not be made
effective prior to the date entitlement is shown. . . . Assuming, however,
that any of
the above-noted statements is considered a claim for TDIU, the effective
date here
remains the same, as May 8, 2003[,] was the earliest date entitlement to a
TDIU is
shown.
R. at 44. As discussed below, for an award of TDIU, the Board erred in its
reasons for denying a
date earlier than May 8, 2003.
2. Protected Work Environment
The Board found that prior to May 8, 2003, the appellant’s employment as
vice president of
his family business did not constitute marginal employment in a protected
work environment, as
contemplated by§ 4.16(a),becauseit “involvedtheactive management of a
small business on a daily
basis.” R. at 43. The Board reasoned that the evidence showed that the
appellant “had an active and
critical role in every aspect of the business, from bidding on projects to
the actual daily work and
production, both in the office and on the job sites.” Id. The Board noted
that he had “extensive
interaction with non-familyemployees, customers, and vendors,” and that “[
w]hile there is evidence
that he required the assistance of family members to calm him down in
certain intermittent
interactions with outside individuals,theVeteranandhis
familyhaveconcededthatthevastmajority
of his interactions with non-family members was positive, which is
supported by the growth and
success of the business.” Id.
The Board further stated:
While the examples of a protected environment include work in a family
business,
in this case the Veteran’s involvement in the business was not that of a
sheltered
individual screened from interaction or responsibility for which he was
not
psychologically adapted. Instead, the Veteran was front and center in the
obtaining
and retaining of customers and the dailywork of the business. While the
Veteran did
require intermittent assistance from family members to calm him down in
certain
interactions with customers and employees, the vast majority of the
Veteran’s
activities were unregulated by his family and, if anything, he directed
the actions of
his family members.
R. at 44.
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The Board determined that it was not until the May 2003 VA examination
that the record
contained a “definitive opinion stating that the Veteran ‘could not be
employed’ if he did not have
his own business,” and that, prior to May 2003, the “weight of the
evidence indicates the service-
connected PTSD caused only intermittent occupational impairment” and “do[
es] not show that he
was unemployable.” R. at 44-45. The Board also stated: “The Board accepts
that the Veteran was
employed in a somewhat sheltered work environment, but notes as well that
the Veteran was
performing work functions and earning approximately $5000 a month doing so.
It is clear from the
record that the Veteran performed real work and was not merely paid to do
a ‘show up’ job.” R. at
47-48. TheBoardnotedthatthe”historyoftreatment recordsreflectstheVeteran’s
increasingfailure
over time to fully control his emotions and anger,” and that the May 2003
VA medical opinion
“appears to mark the first time at which that degeneration of behavior
finally reached the point at
when the Veteran’s assets as a good leader, hard worker, and effective
worksite manager were
outweighed by his PTSD symptomatology.” R. at 48. Finally, the Board found
the lay statements
of the appellant and his family members to be not credible. Id.
The Board acknowledged the November 2006 decision of the Board that had
concluded that
the appellant had marginal employment because he was unable to work in any
environment apart
from his family business. R. at 42. The Board, however, determined that
such conclusion “was
based on layand medical evidence of symptomatology from after that May8,
2003[,] examination,”
and the Board found that the evidence regarding the appellant’s
unemployability prior to that date
that was discussed in the November 2006 Board decision was “not credible
with respect to the
Veteran’s PTSD symptomatology and by extension his ability to work, and
medical opinions based
on these non-credible laystatements that are of no probative value for the
time period prior to May8,
2003.” R. at 42. The Board further stated that its conclusion “is
supported by the RO’s December
2006 rating decision implementing the November 2006 Board decision that
based on consideration
of all the evidence of record established an effective date of TDIU as May
8, 2003.” Id.
The Court concludes that the Board, in limiting the effective date of the
TDIU award to May
2003, committed clear error in disregarding the earlier November 2006
Board determinations that
formed the basis for the award of TDIU. In addition, contrary to the
Board’s observation, the
December 2006 RO decision, which implemented the November 2006 Board
decision, does not
12

support the Board’s finding that the evidence of record established an
effective date of May 8, 2003.
Initially, the Court notes that the December 2006 RO decision assigned
May8, 2003, as the effective
date for TDIU because the RO found that that was the date that the
appellant “initially applied for
this benefit” and determined that his application for TDIU was later than
the date that it was
“factuallyshown that entitlement arose.” R. at 1552.3
In anyevent, and more significantly, the Court
reviews the determinations made by the Board in its 2006 decision
concerning the record when VA
awarded TDIU.4
Theveteranslawjudgein November2006consideredtheappellant’s assertions
thatheworks
in a “sheltered” work place and that he would be unable to work outside
the protections provided by
his family in the family business, as well as all evidence of record as of
that date. R. at 1571. The
2006Boarddecision’sdiscussion
oftheevidenceincludedtheJanuary1997hearingdocumentsfrom
the Connecticut Employment Security Appeals Division pertaining to the
appellant’s on-the-job
conduct in December 1996; the May 1997 VA mental health psychiatric
evaluation report; the May
1999 VA progress notes; the September 1999 VA report; the January 2002
hearing officer decision;
a March 2002 VA record discussing treatment options; a February2003 VA
report from Dr. Meisler;
and the appellant’s January 2004 hearing testimony. R. at 1566-68. In
addition to the May 2003 VA
examination report, the veterans law judge also considered and discussed,
specifically with regard
to the issue of unemployability, the September 1999 VA examination report;
the August 2000
hearing testimony from the appellant addressing his inability to work
anywhere but at the family
constructionbusiness;andothermedicalevidencefromMarch2001and2003, as well
as theJanuary
2005reportfromtheappellant’sdaughter,aclinicalneuropsychologist, who”
wrotethattheappellant
3
The RO decision stated:
By law 38 [C.F.R. §] 3.400 states in part, that the effective date of a
grant for VA benefits, will be the
date of claim, or the date that it is factually shown that entitlement
arose, whichever is the later. In
your case[,] the effective date of this entitlement is the date that you
initially applied for this benefit
and that was May 8, 2003.
R. at 1552.
4
The Court observes that different veterans law judges issued the November
2006 and August 2012 Board
decisions.
13

was unable to work in anyenvironment apart from the family run, sheltered
workplace.” R. at 1573-
74 (emphasis in original).
In discussing the standard required for a TDIU award, the veterans law
judge in 2006
correctly noted that marginal employment may be held to exist, on a facts-
found basis, “based on
employment in a protected environment such as a familybusiness or
sheltered workshop even when
earned income exceeds the poverty threshold.” R. at 1573. The veterans law
judge determined that
the appellant met the percentage requirements of § 4.16(a) in that he has
service-connected PTSD
rated as 70% disabling and that evidence concerning his employment status
showed that “while he
is currently employed, this employment is best characterized as marginal
in view of the sheltered
nature of the family business where he works.” R. at 1559.
In granting TDIU under § 4.16(a), the veterans law judge specifically
made the following
determinations:
In reaching this decision[,] the Board acknowledges that the veteran earns
far above
the poverty level. In the vast majority of cases such a fact would
preponderate
against a claim of entitlement to a total disability evaluation based on
individual
unemployability due to service connected disorders. The evidentiary
tipping point
in this case, however, is the uncontradicted clinical evidence that the
appellant could
not be employed any[]where other than in his family run business. Only in
that
sheltered environment are they willing to deal with lawsuits from former
employees
who arguablywere verbally insulted by the appellant; only in that
environment is the
veteran’s employer willing to accept the presence of police in light of
the appellant
being a perceived threat to others; and only there is the claimant’s
employer willing
to address the PTSD related difficulties which the appellant brings to the
work place
on a day to day basis.
R. at 1575-76.
As noted above, the clinical evidence that reflected that the appellant
could not be employed
anywhere other than his family business included not only the May 2003 VA
report but also the
clinical reports of the appellant’s daughter and Dr. Meisler. These
reports rely not only on
observations of the appellant’s symptoms but also on the history of the
nature and events of the
appellant’s employment, and those events included, as discussed by the
veterans law judge, for
example, Mr. Osowiecki’s verbally assaulting a former employee in December
1996, an incident
necessitating the hearing before the Connecticut Employment
SecurityAppeals Division in January
1997. R. at 1567, 1575. Notably, the February 2003 medical report of Dr.
Meisler stated that Dr.
14

Meisler had treated the appellant since 1997, that the appellant was self-
employed, and that he was
able to function in this capacity due in part to family support. He
concluded that the appellant
“would not be able to function vocationally in any competitive employment
setting in which he
would be directed by others.” R. at 248. The January 2005 clinical
neurological evidence from the
appellant’s daughter discussed the natureof the familywork environment
during the 1980s when she
observed her father in the work environment. R. at 224.
AfterweighingalltheevidenceofrecordasofNovember2006,
whichalsoincludedprogress
notes that showed the appellant “was very busy in his business environment”
and “earned a
substantially gainful income each year since at least 1973″ (R. at 1574-75
), the veterans law judge
in November 2006 concluded that “the evidence is at least in equipoise as
to whether the veteran
could work in any environment other than the sheltered environment offered
by a loving family and
the business that they operate.” Id. at 1576.
Upon reviewing the evidence and the determinations made by the Board in
November 2006,
the Court concludes that the Board, in the decision currently on appeal,
clearly erred in finding that
the award of TDIU and the finding of a “protected environment” was “based
on lay and medical
evidence of symptomatology from after the May 8, 2003[,] examination.” R.
at 42. The conclusion
in 2006 that the employment was “sheltered” was based not only on the May
2003 report but also
on incidents and PTSD symptomatology occurring prior to that time. Indeed,
the 2006 decision did
not merely “focus[] on the May 8, 2003 VA examination findings,” but also
discussed and
emphasizedlanguagefromthereport oftheappellant’s daughter,
whoisaclinicalneuropsychologist.
R. at 1574. To the extent that the Board in 2006 relied on lay statements
of the appellant and his
family members, the veterans law judge did not find that they were not
credible. The fact that the
veterans law judge did not make such a finding in 2006, and relied on
medical reports that were
specifically based on Mr. Osowiecki’s statements, which included
statements of events and
circumstances during the period prior to May 2003, implies that the
veterans law judge found the
appellant credible. A different veterans law judge, in reviewing the same
evidence, may not now
reweigh that same evidence and conclude that the appellant was not in a “
protected” environment
prior to May 8, 2003. R. at 42.
15

3. Evidence of the Protected Work Environment
Because the November 2006 Board decision found that the appellant had
marginal
employment because he was unable to work in any environment apart from his
family business, the
relevant question is: “When did the appellant’s marginal employment begin?”
The determination
of the Board in 2012 that the appellant’s employment cannot be considered
a protected work
environment prior to May2003 because the appellant “had an active and
critical role”in the business
is contrary to the November 2006 Board determination that the appellant’s
employment was
protected. Based on the evidence before the Board in November 2006 showing
that he was
employed in a sheltered family business, the Board “his employment is
marginal in nature, and, as
such, does not constitute substantially gainful employment.” R. at 1575.
In 2012, the Board points
to no evidence that the nature of the appellant’s employment changed in
May 2003. Rather, the
Board concludes that because the appellant was not screened from
interaction or responsibility and
was “front and center in the obtaining and retaining of customers and the
dailywork of the business,”
and because the Board found that his “activities were unregulated by his
family,” the appellant’s
employment was not in a protected environment. R. at 43-44. The 2012 Board
found that the
appellant’s employment was not regulated sufficiently to constitute a
protected environment. In
contrast, the 2006 Board decision found that a protected environment
existed here, where the
employer (the family-run business) “is willing to deal with lawsuits from
former employees who
arguably were verbally insulted by the appellant; . . .willing to accept
the presence of police in light
of the appellant being a perceived threat to others; and . . . willing to
address the PTSD related
difficulties which the appellant brings to the work place on a day to day
basis.” R. at 1575-76.
Because after November 2006 no evidence was added to the record that showed either that the nature of the appellant’s employment prior to May 2003 was different than that discussed in 2006 by the Board or that the appellant’s employment was not in a protected work environment prior to May2003, the Court is, as was the Board in 2012, bound by the November 2006 Board decision that awarded TDIU on the basis that the nature of the appellant’s employment constituted a protected work environment under § 4.16(a). See Murphy v. Shinseki, 26 Vet.App. 510, __ [pinpoint citation not yet available], No. 12-1700, 2014 WL 1327898, at *4 (Apr. 4, 2014) (holding that “an increase in disability compensation, unlike a favorable finding of fact or law that  does not itself confer
16

entitlement to benefits, carries with it substantive rights and procedural safeguards that cannot be easily discarded in the name of de novo Board adjudication”). The 2006 Board determination that the appellant’s employment was marginal was pivotal in conferring on him entitlement to the TDIU benefits – the determination was the sole basis for the TDIU award once the requisite minimum schedular ratings were met under the regulation. The Court concludes that, based on the 2006 Board’s discussion of the evidence, the evidence shows that the environment determined to be sufficient by the 2006 Board decision existed prior to May 2003.
Accordingly, the Board may not, as it did in 2012, find the nature of the employment to be different based on the same evidence that was considered by the Board in 2006. With firm conviction that the 2012 Board erred in weighing the evidence and in finding that it was not factually ascertainable that prior to May 2003 the appellant was unemployable, the Court will reverse that finding, and this matter will be remanded for the Board to award TDIU benefits, effective the date that the appellant’s evidence supports a finding of unemployability. See Padgett v. Nicholson, 19 Vet.App. 133, 147-48 (2005) (noting that a finding is clearly erroneous and may be reversed or set aside if the Court has a “‘definite and firm
conviction that a mistake has been committed'” by the Board (emphasis omitted) (quoting Gilbert, 1 Vet.App. at 52 (quoting U.S. Gypsum Co., 333 U.S. at 395))).
As discussed above, because evidence of the appellant’s unemployability
outside the family
business was submitted to VA in 2000, when he provided a statement
explaining the buffer created
by his family members, the Court concludes that TDIU was shown, at a
minimum, to exist in 2000.
In May 2000, the appellant submitted his statement asserting that he has “
serious impairments in
social and occupational functioning.” R. at 2473. He stated that he could
not be employed outside
the construction company that he owns with his wife because of his rage
and that he is sheltered by
his wife, brother, and step brother,whoactas”buffers between [him] and [
their] customers, vendors,
employees, local, state, and federal government agencies and the general
public.” R. at 2474. He
stated that when he experiences rage while at work, one of these
familymembers “will intercede and
separate me from the person my rage is directed at” and that this has been
a successful strategy for
him to cope with PTSD since he was discharged. R. at 2474. He noted that
additional family
members, including sisters-in-law and nephews, also work at the company
and that “[a]ll of these
employees know of my condition and provide a working environment that I
can function in.” Id.
17

The statement from his familymembers, also submitted at that time, were
from his wife, brother, and
stepbrother, who indicated that the appellant could not work for anyone
because of his rages. R. at
2475-79. The family members dated the symptoms back to 1969. Id. Although
noting that there
were manyexamples, his wife discussed a specificincident datingback to
1992 when she intervened
between the veteran’s rage and a customer (R. at 2475), and his brother
described a similar specific
incident occurring between August 1999 and December 1999 (R. at 2477).
The August 2000 hearing testimony from the appellant’s daughter and wife
again reiterated
that, because of the appellant’s PTSD symptoms, he could not work for
someone else. R. at 258-59,
317, 2393-94. In addition, a March 2001 medical report from the Hartford
Vet Center discussed the
appellant’s treatment in April 2000 for severe PTSD symptoms and that
noted that he was “not
suitably medicated and suffered from extreme depression” and he “was
worried about his anger
symptom on the job.” R. at 2249. The examiner noted that the appellant “
felt that he was beginning
to lose his ability to work well even with his best customers and in a
sense became occupationally
impaired. He thought he might lose the business. He also feels socially
impaired unless he is well
supported by his wife.” Id. Significantly, there is no evidence of record
that is unfavorable to the
appellant’s TDIU claim, such as evidence “addressing the appellant’s
ability to work with others in
an environment awayfrom the familyowned business” or “his abilityto work
some where other than
at his current employment.” R. at 1576.
Although at the time he submitted this evidence in 2000, the appellant’s
schedular rating did
not meet the minimum threshold requirement for entitlement to a TDIU
rating under §4.16(a), the
2006 Board granted him a 70% rating for PTSD, effective May 1997, and thus
the appellant is
entitled to a rating of TDIU, effective at a minimum from May 2000 when he
met the schedular
requirements and submitted evidence of his unemployability. Accordingly,
the Court will reverse
the Board’s finding that the appellant’s employment prior to May 8, 2003,
did not constitute
employment in a protected work environment and will direct the Board to
assign an effective date
for TDIU of April 2000, when there was evidence in the record at that time
that his PTSD symptoms
rendered him unemployable pursuant to § 4.16(a), and he reasonably raised
the matter of a rating of
TDIU.
18

On remand, the Board will determine whether the evidence of record,
including the
retrospective medical evidence and vocational assessments added to the
record after the November
2006 Board decision, entitles the appellant to an effective date for TDIU
prior to May 2000.
See Rice; 38 C.F.R. § 3.156. In this regard, the Court notes that, as
discussed below, it is remanding
the matter of an appropriate ratingand effective date for the appellant’s
service-connected PTSD and
that such readjudication may affect the Board’s determination as to the
appellant’s entitlement to
TDIU for the relevant period prior to 2000. Accordingly, the Court
concludes that the matters are
intertwined in this case. On remand, the Board must also consider the one-
year period prior to the
date of the appellant’s claim for an increased rating–i.e., whether
during that period it became
“factually ascertainable that an increase in disability had occurred,”
pursuant to section 5110(b)(2)
and § 3.400(o)(2). See Dalton, 21 Vet.App. at 34-35 (concluding that the
question to be answered
by the Board is whether “an increase in disability occurred in the year
prior to the application for
TDIU”).
B. Increased Rating for PTSD Prior to May 1997
As noted above, because there was a VA examination that was conducted in
1969 and a
subsequent nonfinal 1969 RO decision, as well as the specific finding by
the Board, the appellant’s
claim for an increased rating for PTSD has been pending since 1969. As
noted above, the appellant’s
service-connected PTSD is currently rated 70% disabling, effective May
1997, and rated 10% for
the period 1969 through May 1997.5
On appeal, the appellant argues that he is entitled to a rating of either
70% or 100% for the
period from 1969 to 1997 because his PTSD resulted in, at least, “
pronounced” or “severe”
impairment in his ability to obtain or retain employment, 38 C.F.R. § 4.
132, DC 9400 (1969), and
is supported by the records of his treating physicians, independent
medical and psychological
evaluations, testimony of his family, and a vocational expert opinion. App.
Br. at 15-23. He
contends that the Board erred in finding that the lay evidence is not
credible in that its conclusion
runs afoul of Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), which
held that “the Board
In November 2006, the Board granted the 70% rating and assigned May 20,
1997, as the
effective date based on a May 1997 VA outpatient mental health psychiatric
evaluation that the
Board found to constitute a claim for an increased rating following the
1969 RO decision, which has
subsequently been determined to be nonfinal. R. at 1576.
5
19

cannot determine that lay evidence lacks credibility because it is
unaccompanied by
contemporaneous medical evidence.” App. Br. at 18. The appellant asserts
that, although the Board
acknowledges Buchanan, “it points to a lack of contemporaneous medical
evidence from 1969 to
1997 in concluding that the lay statements are not credible.” Id. The
appellant further contends that
the Board erred in rejecting the statements of the appellant’s family
members regarding their
observations of his symptoms over the years. He argues that the Board
ignored the fact that the
appellant’s account of his symptoms in the 1999 examination report was
consistent with the
statements of his family and the family’s statements that his PTSD
symptoms “had been worsening
in recent years” does not mean his symptoms were not severe from 1969 to
1997. App. Br. at 18-19.
The Secretary counters that the Board did not violate the principles of
Buchanan by
determining that the lay evidence was not credible simply based upon a
lack of contemporaneous
medical evidence. Rather, he argues, the Board found the lay evidence
regarding his symptoms
during the 1969 to 1997 period not credible because it was inconsistent
with the medical evidence
and the family members’ statements noting he suffered “increased” PTSD
symptoms in 1997.
Secretary’s Br. at 15-16. The Secretary further argues that the Board
properly rejected the medical
opinions thatindicatedthathis PTSD symptoms renderedhim unableto
obtainorretain substantially
gainful employment, retrospective to the time he left service, because the
opinions were based on
inaccurate facts.
The Board did not discount the lay statements based on the lack of
contemporaneous
evidence to support the statements and, therefore, did not violate the
principles of Buchanan. Here,
the Board focused on inconsistencies in the lay statements. R. at 33-34.
Specifically, the Board
noted that the lay statements initially indicated that the appellant’s
symptoms had worsened around
1997 and then found that they were inconsistent with the more recent
statements that indicated that
he had always been seriously affected by his PTSD since his discharge from
service. Id. The Board
stated: “In this case, the ‘inherent characteristics’ of the Veteran’s and
his family member[s’] current
statements as to the severity of his PTSD symptoms from 1969 to May 20,
1997, are inconsistent
with the objective medical record and the Veteran’s and his family members[‘
] more
contemporaneous statements.” R. at 33. The Board gave “greater credence
and weight to the
contemporaneous medical records and lay statements . . . than to the more
recent assertions of
20

continuous severePTSDsymptomsfrom 1969″andconcludedthatthe”current
statementsregarding
ongoing severe PTSD symptoms that were the same
orworsethanthoseexperienced from May1997
are simply not credible evidence.” R. at 35.
The Board discredited the laystatements becausetheappellantandhis
familymembers”now
claim that his PTSD symptoms were the same, or even worse, prior to May 20,
1997,” but other
evidence reflected that his symptoms became worse around May1997. The
Board cited (1) the May
1997 treatment record that indicated that he sought treatment based on “
increased” depressive and
PTSD symptoms; (2) a September 1999 VA examination that indicated claims
of worsening
symptoms; and (3) the August 2000 hearing testimonyfrom the appellant’s
wife and daughter stating
that the symptoms had been worsening in recent years. R. at 33-34.
The Board is responsible for making credibility determinations, and it may
find that lay
statements of record lack credibility; however, as with anyfinding on a
material issue of fact and law
presented on the record, the Board must support its assessment of lay
evidence with an adequate
statement of reasons or bases that enables the claimant to understand the
precise basis for that
determination and facilitates review in this Court. See 38 U.S.C. § 7104(
d)(1); Caluza, 7 Vet.App.
506 (1995) (holding that the Board must provide the reasons for its
rejection of any material
evidence favorable to the claimant); Gilbert, 1 Vet.App. at 52; see also
Buchanan, 451 F.3d at 1337;
Owens v. Brown, 7 Vet.App. 429, 433 (1995).
The Board again has failed to adequately explain how the 1997 reporting of “
worsening”
symptoms in 1997 differed materially from the appellant’s later testimony
and the other lay
statements that he had experienced significant PTSD symptoms from 1969 to
1997. In December
2011, this Court remanded this matter to the Board based on the parties’
joint motion for remand that
specifically found error in the Board’s credibilityassessment. R. at 98-
102. Specifically, the parties
noted that the Board had failed to discuss how the statements documented
in 1969 and during the
courseofmedicaltreatment between1997and2003–includingthe1999reportof”
significant”years-
long PTSD symptoms and the 1997 report of “worsening” symptoms–differed
materially from the
later testimony such that the later testimony was not credible. R. at 100-
01.
In rejecting the lay evidence as not credible, the Board in 2012 based its
explanation
primarily on the “current statements regarding ongoing severe PTSD
symptoms that were the same
21

or worse than those experienced from May 1997,” that is, statements that
the appellant’s PTSD
symptoms “were the same, or even worse, prior to May 20, 1997,” when other
evidence of record
reflected that he sought treatment in May 1997 because his symptoms were
becoming worse.
Upon reviewing the testimony from the most recent Board hearing (November
2010), the
Court concludes that the Board has not sufficiently supported its reasons
for rejecting the testimony
as inconsistent with evidence of worsening symptoms in May 1997. The Court
agrees with the
appellant: “Simply because the symptoms ‘had been worsening in recent
years’ does not mean that
Mr. Osowiecki’s symptoms werenot severe from 1969 to 1997–as observed
byfamilymembers over
those years.” App. Br. at 19. As argued bythe appellant, “[t]he
familymembers were merely stating
that at that time theyfelt that Mr. Osowiecki’s symptoms were becoming
more severe. This does not
lessen the severity of the Veteran’s symptoms prior to that time.” Id.
The most recent testimonyof the appellant, his wife, and their daughter
was taken during the
November 2010 Board hearing. R. at 334-76. The appellant’s wife testified
that the appellant’s
symptoms of PTSD, including his anger and unpredictability, remained
constant over the years and
were less severe now than in 1969, the 1970s, 1980s, and 1990s “because as
he sought help [in
1997], he realized why he was behaving like he was.” R. at 344-45, 350.
She testified that after he
sought help, she
was finally able to say to him you need to reign it in, I could see him
heading in a bad
direction to say to him you need to reign it in. You’re going in the wrong
direction,
but at that time we just–we didn’t quite know what to do with it, we
weren’t sure what
was . . . .
R. at 344. She explained that she did not feel that at any point over the
course of his life since
service could he have worked for anybody else. R. at 350. She testified
that although her husband
was smart and would “bid the jobs, . . . look at the job, [and] measure
the jobs,” she would not have
felt comfortable with him going to do jobs by himself and he was always
partnered with another
family member “[b]ecause he was unpredictable” and because of his anger. R.
at 344-45.
Mr. Osowiecki testified that it was “roughly around the 1970 period” when
he realized that
even working for himself with his father and his wife that he was going to
run into problems because
of having anger and fits of rage (R. at 363-64), that he believed that his
wife and father performed
“damage control” in the early seventies, and that the business would not
have functioned without
22

them. R. at 366. He testified about his PTSD symptoms, including anger,
rage, nightmares, anxiety,
and flashbacks, which he experienced in 1969, and he stated that they have
been constant for him
since that time, but that in 1969, he did not realize “what was wrong”
with him. R. at 366-71. He
also explained what led him to seek treatment in 1997: He had argued with
his wife over his desire
to give money to her sister and then “somehow . . . it got into me
screaming about how my weapons
didn’t fire in Vietnam.” R. at 372. He explained:
I don’t know how it got there. Then it got so bad, I had to grab the table,
it felt like
I was going to float into outer space and I asked my wife to leave the
house. And I
looked into the blue pages and called the VA and I was directed here,
Middleton, and
when I got here, I couldn’t even speak. They – I couldn’t even talk, [s]
o they got me
into mental triage and then they sent me to West Haven, and then they told
me that
I had this stress disorder which I didn’t know about.
Id.
The appellant testified that his symptoms were worsewhen he cameout of
service than when
he was able to start treatment in 1997 because, prior to his treatment, he
did not understand PTSD,
and that he had a problem, and that other people had the same problem. R.
at 373. He testified that
the treatment “helped [him] understand quite a bit” because it became
easier to recognize that he had
a problem:
I don’t see that it’s ever going to be fixed. I think that–I think that
PTSD in a Vietnam
vet is going to end when the last vet dies. I don’t think there’s a cure
for it. I really
don’t. There might be medication to make you a zombie, but I don’t think
there’s a
cure for PTSD like I got. I think it’s a lifelong thing. I think that
we’re going to try
[to] deal with it and understand it and so I would say now is that I think
I have a
better understanding of what it was. I didn’t know what it was then. And
that’s, you
know, I think it’s a little bit easier now than it was then.
Id. He further testified that he does not have any hobbies and has not
hunted or fished since leaving
service but that, prior to service, he enjoyed hunting and fishing. R. at
374. Finally, when asked
whether, after coming home from service, he could have worked any place
other than where he has
worked, he responded:
I think that [if] it wasn’t for my rage, yes, I would be a very valuable
employee to a
lot of people. I don’t think that there’s any company other then my own,
my wife’s
that would let me–that would even support me in–you know, where the
police
coming to the offices and customers and everything and the rage in me, no
business
23

could survive that. Just couldn’t do it. . . . If my family wasn’t there,
I’d be homeless.
. . . I don’t think the VA’s going to save me. I think the family is going
to save me.
R. at 375.
Read in its entirety, the appellant’s testimony includes an explanation as
to why he believed
his symptoms when he came out of service and up to when he sought
treatment in May 1997 were
the same or worse than they were after he started receiving treatment in
May 1997. He explained
that, after receiving treatment, he better understood his stress disorder
and that has made it easier for
him. Accordingly, the Court concludes that the Board’s reasons for finding
the evidence not credible
are inadequate and will remand the matter for readjudication.6
On remand, in considering all the
evidence of record, the Board is to apply the applicable criteria of DC
9411 and consider the
potential applicability of staged ratings. In addition, the Board is to
consider the applicability of
38 C.F.R. § 4.16(c) (1969), which provides a 100% schedular rating in
cases in which the only
compensable service-connected disability is a mental disorder that is
rated 70% and the disorder
precludes a veteran from securing or following a substantially gainful
occupation.7
The Court observes that the Board also discounted several medical opinions
regarding the
appellant’s symptomatology during the relevant period because the opinions
were premised on the
lay statements that the Board found not credible. R. at 35-36. However, as
the parties noted in the
December 2011 joint motion for remand, the medical opinions were not based
solely on the lay
statements. R. at 102. The Board failed to acknowledge this fact. For
instance, Dr. Meisler
indicated that he had treated the appellant since 1997. R. at 248. Dr.
Curran reviewed the appellant’s
claims file, interviewed Dr. Meisler, and examined the appellant. R. at
1177-93. Dr. Drew indicated
The Board also discounted the credibility of the appellant and his family
because (1) the appellant stated that
he had no hobbies but also stated that he incurred injuries while skiing; (
2) in recent years, he stated that he was no longer
working but also stated that he spends significant time at his family
business and that he goes to work to “check on
things”; and (3) the appellant testified that there was a lack of
significant income earned from his business during its
formative years as evidence of the difficulty he experienced at that time
as a result of his psychiatric disorder, but he also
told the examiner in 1969 that his occupational problems at that time were
due to a shortage of money and the usual
difficulties associated with starting a business. R. at 34. The Court
concludes that these asserted discrepancies are not
material and thus an insufficient basis, either standing alone or taken
together, upon which to discount the lay evidence
regarding the appellant’s symptoms during the relevant period of April
1969 to May 1997.
Because the evidence includes a VA examination dated January 20, 1969, the
Board must also consider
whether an informal claim for an increased rating was submitted on that
date, rather than on April 1969. 38 C.F.R.
§ 3.157(b)(2) (1969).
7
6
24

that she had reviewed the appellant’s claims file and that her opinion
was “based on the records of
[his] treating physicians, independent medical and psychological
evaluations, and the testimony of
his family.” R. at 76. The Board is permitted to favor the opinion of one
competent medical expert
over another provided that the Board supplies an adequate statement of
reasons or bases for its
conclusion. See Owens, 7 Vet.App. at 433. The Board did not do so here.
On remand, the Board must determine the appropriate effective date for the
compensable
rating(s) for the appellant’s service-connected psychiatric condition, and
consider, if necessary, the
effective date for any staged ratings. See Fenderson v. West, 12 Vet.App.
119, 126 (1999). On
remand, the appellant is free to submit additional evidence and argument
in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
See Kay v. Principi,
16 Vet.App. 529, 534 (2002). The Board must provide expeditious treatment
of this matter on
remand. See 38 U.S.C. §§ 5109B, 7112 (expedited treatment of remanded
claims).
III. CONCLUSION
Based on the foregoing analysis and a review of the record on appeal, the
August 8, 2012,
Board determination that the appellant is not entitled to a TDIU rating
prior to May 2003 is
REVERSED, the Board is directed to ensure that an effective date not later
than April 2000 is assigned for TDIU, and the matter of an effective date earlier than April
2000 for TDIU is
REMANDED for readjudication. The Board’s decision denying an increased
rating in excess of 10% for the period April 1, 1969, to May 19, 1997, for the appellant’s service-connected PTSD is
VACATED, and the matter of an appropriate effective date for the
compensable rating(s) for the appellant’s service-connected psychiatric condition is REMANDED for further proceedings consistent
with this decision.
DATED: May 21, 2014
Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
25

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