Citation Nr: 0808306 Decision Date: 03/12/08 Archive Date: 03/20/08 DOCKET NO. 05-27 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an effective date earlier than August 15, 2003 for the grant of a 100 percent evaluation for post- traumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than August 15, 2003 for the grant of eligibility to Dependents Educational Assistance under 38 U.S.C.A. Chapter 35. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Vella Camilleri, Associate Counsel INTRODUCTION The veteran served on active duty from August 1952 to June 1954. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which granted a 100 percent evaluation for PTSD and entitlement to Dependents Educational Assistance under 38 U.S.C.A. Chapter 35, both effective August 15, 2003. FINDINGS OF FACT 1. In an April 2001 rating decision, the RO increased the evaluation of the veteran's PTSD to 30 percent, effective July 27, 2000. 2. The veteran has not asserted that the April 2001 rating decision was clearly and unmistakably erroneous. 3. The veteran's claim for an increased evaluation for his PTSD was received on August 15, 2003. 4. In November 2004, the RO granted a 100 percent evaluation for PTSD, effective August 15, 2003. 5. There is no medical evidence showing that the veteran's PTSD warranted a 100 percent evaluation at any time during the year prior to August 15, 2003. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 15, 2003, for the grant of a 100 percent evaluation for PTSD have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). 2. The criteria for an effective date prior to August 15, 2003, for a grant of entitlement to educational benefits under the provisions of Title 38 of Chapter 35, United States Code, have not been met. 38 U.S.C.A. §§ 3500, 3501, 3510, 3511, 3512, 5107, 5110, 5113 (West 2002); 38 C.F.R. §§ 3.159, 3.400, 21.3041; 21.4131(d) (1) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Effective date, 100 percent rating for PTSD It is undisputed that the veteran did not perfect an appeal of the RO's April 2001 rating decision. As such, entitlement to an earlier effective date for his PTSD is not warranted on this basis. The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). Service connection for PTSD was established with a 10 percent evaluation effective February 15, 1996. See June 1999 rating decision. The veteran was notified of this decision by letter dated July 2, 1999, but he did not file a timely appeal and this decision became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). The RO subsequently granted a rating of 30 percent, effective July 27, 2000, in response to a claim for increased rating received in August 2000. See April 2001 rating decision. The veteran was notified of this decision by letter dated April 25, 2001, but he again failed to file a timely appeal; thus, it also became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2000). The veteran filed a claim for increased rating that was received by the RO in August 2003. See statement in support of claim. The RO initially denied the claim and continued the 30 percent rating assigned for PTSD. See March 2004 rating decision. The veteran thereafter filed a notice of disagreement (NOD) and the RO subsequently increased the rating to 100 percent, effective August 15, 2003, the date on which the veteran's claim for increased rating was received. See November 2004 rating decision. The veteran contends, however, that he is entitled to an effective date earlier than August 15, 2003, for the assignment of the 100 percent evaluation. See January 2005 NOD. In pertinent part, the veteran proposes that the effective date should be July 27, 2000, and would prefer it to be February 15, 1996. See June 2005 VA Form 21-4138. The veteran's representative points to a July 27, 2000 record from Dr. M. Mayclin as support for entitlement to an earlier effective date for the 100 percent evaluation. Based on the evidence as discussed above, the date of the veteran's claim for an increased evaluation for service- connected PTSD is August 15, 2003. The Board must now ascertain when the increase in disability occurred. As the earliest date of the veteran's increased rating claim is August 15, 2003, he could be granted an effective date as early as August 15, 2002, if it were factually ascertainable that an increase in disability had occurred within that year. See 38 C.F.R. § 3.400(o)(2) (2007); Harper, 10 Vet. App. at 126. The veteran's PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). Under this diagnostic code, a 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Board notes that review of the claims folder reveals that the veteran was scheduled for a VA compensation and pension (C&P) PTSD examination in February 2001, in conjunction with his August 2000 claim for increased rating, but failed to report. It appears the veteran was arrested at the Hayden VA Medical Center (VAMC) in January 2001 and released from incarceration in January 2003. See February 2001 and April 2001 statements from veteran; January 2003 homeless program initial assessment; September 2003 VA C&P examination report. In addition, the Board notes that the RO relied upon the July 27, 2000, record from Dr. Mayclin to grant an increase to 30 percent for PTSD. See April 2001 rating decision. The Board also points out despite the RO's acknowledgement of an absence of objective evidence prior to the date of the veteran's claim to support an increased evaluation, and relying upon a September 2003 VA C&P examination to assign the 100 percent disability rating for PTSD, the effective date assigned by the RO was the date it received the veteran's claim rather than the date entitlement arose. See November 2004 rating decision. The medical evidence of record dated prior to August 15, 2003, but no earlier than August 15, 2002, is not substantial and is devoid of any record of psychological treatment. The veteran was seen in January 2003 shortly after his release from prison. He was then living in a building owned by a friend. The veteran was alert and oriented at the time of the interview and his hygiene and clothing were within normal range. His mood was dysphoric and anxious and affect was consistent with verbal content. The veteran was open and cooperative and denied any homicidal and/or suicidal ideation and audio or visual hallucinations. There was no evidence of any gross psychotic symptoms, memory and concentration appeared intact, and insight and judgment were fair. The veteran indicated that he had not used the VA medical system for medical and/or psychiatric care in the past six months. He reported experiencing serious depression and anxiety or tension, and indicated that he had taken prescribed medication for a psychological/emotional problem, but denied experiencing trouble understanding, trouble concentrating or remembering, and trouble controlling violent behavior. The veteran reported that he had been retired/disabled in the past three years. See homeless program initial assessment. The evidence of record dated between August 15, 2002, and August 15, 2003, does not contain evidence of total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. In the absence of such evidence, entitlement to an effective date prior to August 15, 2003 for the assignment of a 100 percent rating for service-connected PTSD is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). II. Effective date, Chapter 35 entitlement For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C.A. §§ 3501, 3510 (West 2002); 38 C.F.R. §§ 3.807(a), 21.3021 (2007). With regard to the veteran's claim for an effective date prior to August 15, 2003 for the grant of basic eligibility to Chapter 35 educational benefits, the Board finds that pursuant to 38 U.S.C.A. Chapter 35, the veteran was found to have a permanent total service-connected disability when he was granted a 100 percent evaluation for PTSD, effective August 15, 2003. The effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C.A. § 5113 (West 2002). Based on the foregoing, because the veteran was found to have a permanent total service-connected disability when he was granted a 100 percent evaluation for PTSD effective August 15, 2003, entitlement to basic eligibility to Chapter 35 educational benefits must also be effective August 15, 2003. Although the veteran asserts that he is entitled to an earlier effective date for Chapter 35 educational assistance, the regulatory criteria and legal precedent governing eligibility for the receipt of such benefits are clear and specific. The Board is bound by these criteria. 38 U.S.C.A. §§ 503, 7104 (West 2002); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). III. Duties to notify and assist With respect to the veteran's PTSD claim, the United States Court of Appeals of the Federal Circuit has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As to his Chapter 35 claim, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). As to VA's duty to assist, because there is no outstanding evidence that should be associated with the claims folder. The Board thus finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the veteran will not be prejudiced by the Board's adjudication of his claims. ORDER An effective date earlier than August 15, 2003 for the grant of a 100 percent evaluation for PTSD is denied. An effective date earlier than August 15, 2003 for the grant of eligibility to Dependents Educational Assistance under 38 U.S.C.A. Chapter 35 is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs