Citation Nr: 0809923 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 04-07 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an increase in the ratings for post- traumatic stress disorder (PTSD) which is currently assigned staged ratings of 50 percent prior to August 4, 2006 and 70 percent from August 4, 2006. 2. Entitlement to an effective date prior to August 16, 2002 for the grant of service connection and a 50 percent rating for PTSD. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from March 1966 to February 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Seattle, Washington Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD, rated 30 percent, effective from August 16, 2002. A December 2003 rating decision increased the rating to 50 percent, effective August 16, 2002. An August 2006 rating decision increased the rating to 70 percent, effective from August 4, 2006. The veteran has continued to express disagreement with the ratings assigned, and as the ratings are less than the maximum under the applicable criteria, that issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The issue pertaining to the rating of PTSD (from August 16, 2002) is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. FINDINGS OF FACT 1. A final March 2000 rating decision denied service connection for PTSD. 2. After the March 2000 decision, the first communication from the veteran seeking to reopen a claim of service connection for PTSD was received on August 16, 2002. CONCLUSION OF LAW An effective date earlier than August 16, 2002 is not warranted for the award of service connection and a 50 percent rating for the veteran's PTSD. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Since the rating decision that is on appeal granted service connection for PTSD and an effective date for the award, statutory notice had served its purpose and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A December 2003 statement of the case (SOC) provided notice on the "downstream" issue of effective dates of awards and an August 2006 supplemental SOC readjudicated the matter after the veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). Neither the veteran nor his representative has alleged that notice in this matter was less than adequate. All evidence relevant to the veteran's claim has been secured. It is noteworthy that determinations regarding effective dates of awards are based, essentially, on what was shown by the record at various points in time and application of governing law to those findings, and generally further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding. The veteran has not identified any other pertinent evidence that remains outstanding. Thus, VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. B. Legal Criteria, Factual Background, and Analysis Except as otherwise provided, the effective date of an evaluation and award of 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; 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. In his notice of disagreement, received in July 2003, the veteran argued that he was entitled to an effective date in 1999, when he originally filed a claim of service connection. However, a March 2000 rating decision denied the veteran's original claim of service connection for PTSD. He did not appeal that decision; it became final and is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision. 38 U.S.C.A. §§ 7105, 5109A; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). The veteran has not alleged that there was CUE in the March 2000 rating decision; hence, that rating decision is a legal bar to an effective date prior to the date of the decision. The veteran's formal claim to reopen a claim of service connection for PTSD was received by the RO on August 16, 2002. The only question before the Board at this time is whether subsequent to the March 2000 decision and prior to August 16, 2002, he communicated an intent to reopen his claim seeking service connection for PTSD. There is nothing in the record to suggest that he did so. Nothing in the claims file received during this time period may be construed as a formal or informal claim seeking to reopen the claim of service connection for this disability. In fact, the claim and accompanying evidence received on August 16, 2002 was the first communication from the veteran following the March 2000 rating decision. Neither the veteran nor his representative has alleged that he submitted an earlier application to reopen the claim. Accordingly, as a matter of law, the appeal seeking an effective date prior to August 16, 2002 for the grant of service connection and a 50 percent rating for PTSD must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER An effective date prior to August 16, 2002 for the grant of service connection and a 50 percent rating for PTSD is denied. REMAND This appeal is from the initial rating assigned for a disability with the award of service connection for such disability; hence, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). A May 2003 letter from B. J. M., a VA PTSD Contract Counselor, with Okanogan River Counseling states that he treated the veteran in April to June of 2001 and April to May of 2003. Additionally, a May 2003 letter from a counselor at the Confederated Tribes of the Colville Reservation Wellness Center indicates the counselor had been treating the veteran "from time to time for about ten (10) years." A May 2005 letter from Veteran and Trauma Therapist, L. B., also of the Confederated Tribes of the Colville Reservation Wellness Center, indicates she had been seeing the veteran on a bi- weekly basis for six months. Any treatment notes or summaries generated during sessions with these counselors are pertinent to determining the severity of the veteran's PTSD throughout the appellate period. The record also reflects the veteran began seeking psychiatric treatment at the Spokane VA Medical Center in July 2006. Updated records of this treatment are constructively of record, pertinent to the veteran's claim, and should also be obtained on remand. The Board notes that the veteran last underwent a VA psychiatric examination in August 2006, and there is presently no indication in the record that a new examination would be required. However, if, after obtaining the records referred to above, the RO determines that another VA psychiatric examination is indicated, such examination should be ordered. During the pendency of this appeal, the U. S. Court of Appeals for Veterans Claims (Court) outlined the notice that is necessary in a claim for an increased rating. Vazquez- Flores v. Peake, No. 05-0355 (U. S. Vet. App. Jan. 30, 2008). The Court held, in essence, that the Secretary must notify the claimant that, to substantiate a claim, the claimant must provide (or ask the Secretary to obtain) evidence of a worsening of the condition and its impact on employment and daily life; how disability ratings are assigned; general notice of any diagnostic code criteria for a higher rating that would not be satisfied by evidence of a noticeable worsening of symptoms and effect on functioning (such as a specific measurement or test result); and examples of the types of medical and lay evidence the veteran may submit to support an increased rating claim. Since the case is being remanded anyway, the RO will have the opportunity to correct any notice deficiencies. Accordingly, the case is REMANDED for the following: 1. The RO must provide the veteran the specific notice required in increased compensation claims, as outlined by the Court in Vazquez-Flores v. Peake, No. 05- 0355 (U.S. Vet. App. Jan. 30, 2008) and afford him adequate time to respond. 2. The RO should ask the veteran to identify any additional psychiatric treatment or evaluation that is not already of record and to provide any releases necessary to obtain records of such treatment or evaluation. Of particular interest are treatment records/ notes from sessions at the Confederated Tribes of the Colville Reservation Wellness Center both prior to May 2003 (with an unnamed counselor) and since September 2004 (with L. B.) and records from treatment with B. J. M. of Okanogan River Counseling. The RO should obtain complete records of all such treatment and evaluation from all sources identified by the veteran. The RO should update the record with any VA treatment records since August 2006. The veteran must assist in this matter by cooperating with requests for identifying information and providing any necessary releases. In conjunction with this development he should be advised of the provisions of 38 C.F.R. § 3.158(a). 3. If, after reviewing the records obtained pursuant to the above request, the RO determines that another VA psychiatric examination of the veteran is indicated in order to ascertain the current severity of the PTSD, the RO should arrange for such examination. 4. The RO should then re-adjudicate the claim. If it remains denied, the RO should issue an appropriate SSOC and give the veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs