Citation Nr: 0811364 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 04-37 956 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an effective date prior to August 10, 2005, for the assignment of a 70 percent disability evaluation for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran INTRODUCTION The veteran served on active duty from June 1976 to June 1980. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the claim for entitlement to service connection for PTSD. The veteran appealed the denial of that decision and was granted service connection for PTSD in October 2005 at the Portland, Oregon RO. The Board notes that the October 2005 RO decision recharacterized the veteran's psychiatric disability from anxiety disorder with major depressive disorder to PTSD. Additionally, the October 2005 RO decision indicated that the veteran had a 50 percent disability evaluation for PTSD effective from August 17, 2000, and a 70 percent disability evaluation effective from August 10, 2005. The veteran filed an October 2005 notice of disagreement (NOD) with the effective date assigned for the 70 percent evaluation. In September 2007, the veteran presented testimony at a personal hearing conducted at the Portland RO before a Veterans Law Judge (VLJ). A transcript of this personal hearing is in the veteran's claims folder. The hearing transcript reflected that the veteran withdrew her claims for entitlement to a disability evaluation in excess of 70 percent for PTSD and for entitlement to service connection for a prolapsed uterus at the pre-hearing conference. 38 C.F.R. § 20.204. The Board will therefore proceed with the remaining issue as referenced above. The record reflects that the veteran submitted additional evidence received by VA in October 2007 that has not been reviewed by the RO. However, the Board notes that the evidence submitted is merely duplicative of the materials and arguments previously submitted by the veteran. As such, the Board concludes that a waiver is not necessary and will proceed with the appeal. 38 C.F.R. § 20.1304. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. In June 2003, the veteran submitted a VA Form 21-526, Application for Compensation or Pension, on which the veteran claimed VA compensation benefits for PTSD 3. At the time of receipt of the veteran's application for benefits for PTSD in June 2003, service connection was in effect for anxiety disorder, not otherwise specified, for which a 50 percent disability evaluation was assigned, effective in August 2000. 4. Service connection for PTSD was granted in an October 2005 rating decision, at which time a 70 percent evaluation for PTSD was assigned effective August 10, 2005, the date of a VA examination. 5. A formal or informal claim for an increased rating for a psychiatric disorder was not received before June 6, 2003. 6. It was factually ascertainable that the veteran met the criteria for a 70 percent evaluation for PTSD (formerly rated as an anxiety disorder) during the year prior to the filing of the June 6, 2003, claim. CONCLUSION OF LAW The requirements for an effective date prior to August 10, 2005, for the grant of a 70 evaluation for PTSD were met effective June 6, 2002. 38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.159, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. Prior to initial adjudication of the veteran's claim for service connection for PTSD, a letter dated in July 2003 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter advised the veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by her, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the veteran. In this way, she was advised of the need to submit any evidence in his possession that pertains to the claim. Finally the letter informed her what information and evidence would be obtained by VA, namely, records like service medical records and records from other Federal agencies. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that "upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application." Dingess/Hartman, 19 Vet. App. at 486. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. Although the July 2003 letter did not specifically include the additional elements delineated in Dingess/Hartman, the veteran was provided with this information along with the February 2007 statement of the case (SOC). Additionally, the Board notes that the veteran filed a notice of disagreement (NOD) in October 2005 with the original grant of the 70 percent effective date for PTSD in the October 2005 RO decision. The Board also notes that in the February 2007 SOC, the RO discussed the requirements for establishing an earlier effective date for the 70 percent evaluation for PTSD. See also Hartman v. Principi, 483 F. 3d 1311 (Fed. Cir. 2007) (holding that VA is not required to provide claimant with an additional VCAA notice after the filing of a Notice of Disagreement challenging the effective date of an award for benefits). In summary, the Board finds that the evidence does not show, nor does the veteran or her representative contend, that any notification deficiencies have affected the essential fairness of the adjudication. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Sanders v. Nicholson, 487 F. 3d 881 (Fed. Cir. 2007). For the reasons discussed above, the Board finds that VA has fulfilled its duties to notify and assist the veteran to the extent necessary. VA has satisfied its duties to inform and assist the veteran at every stage of this case. All available service medical records as well as all VA medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the veteran's claim. The veteran presented testimony at a personal hearing conducted in September 2007. VA has also assisted the veteran and her representative throughout the course of this appeal by providing them with a SOC, which informed them of the laws and regulations relevant to her claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. LAW AND ANALYSIS Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(ii), (r). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98 (Sept. 23, 1998), the General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. "Claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Under 38 C.F.R. § 3.157, once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service- connected disability is not compensable in degree, receipt of a report of VA examination or hospitalization will be accepted as an informal claim for increased benefits or an informal claim to reopen. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. Under 38 C.F.R. § 3.157(b)(2), the date of receipt of evidence from a private physician or layman will also be accepted as an informal claim if the evidence furnished by or on behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). When the evidence of record is considered under the laws and regulations as set forth above, the Board finds that June 6, 2002, is the correct date for the grant of the 70 percent disability evaluation for PTSD. Although the veteran testified during her September 2007 hearing and in numerous statements and items of correspondence submitted to VA that she believed the effective date should be August 2000 (the date of allowance of service connection and of a 50 percent disability rating for an anxiety disorder); the anniversary of her son's death (September 2001); or the date of receipt of emails (April 2002), the latter two incidents which she contended exacerbated her PTSD, the Board finds that the earliest date she is entitled to by law is June 6, 2002. The record reflected that the veteran originally filed a claim for an anxiety disorder as related to the death of her child in August 2000. In an April 2002 decision, the RO granted service connection for an anxiety disorder and assigned a 50 percent evaluation effective August 17, 2000. Attached to the April 2002 decision notifying the veteran of the grant of service connection for an anxiety disorder was a letter detailing the veteran's appellate rights. The veteran did not file a NOD with that decision, rendering it final. 38 C.F.R. §§ 20.201, 20.1103. Following the issuance of the April 2002 rating decision, the veteran filed a claim for compensation for PTSD in VA Form 21-526 received by VA on June 6, 2003. Although the veteran was again seeking compensation for a psychiatric disorder in connection with the death of her son, the Board notes that it was reasonable for the RO to construe the June 2003 claim as one for service connection for PTSD. The veteran was denied service connection for PTSD in a December 2003 RO decision and filed a timely NOD in November 2004. She was subsequently granted service connection for PTSD in an October 2005 RO decision. The Board notes that, for the grant of service connection for PTSD, the effective date of an award based on an original claim shall not be earlier than the date of the receipt of the application. As such, in the veteran's case, the earliest effective date would be June 6, 2003, if the June 2003 claim was construed as entitlement to an earlier effective date for the grant of service connection for PTSD. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, in this case the Board will interpret the June 2003 Form 21-526 as a claim for an increased evaluation for her previously granted service-connected anxiety disorder. As noted above, although the veteran classified her disability as PTSD in the June 2003 Form 21-526, she referenced the same event, the death of her son, which gave rise to her earlier August 2000 claim for anxiety disorder. Therefore, the Board concludes that the veteran has been seeking compensation for a psychiatric disorder based on the death of her son, which the RO recognized by recharacterizing the veteran's psychiatric disorder for an anxiety disorder to PTSD in the October 2005 RO decision. As will be discussed below, this is a more favorable characterization of the issue for the veteran. The record does not contain any statement or action filed earlier than June 6, 2003, indicating an intent to file a claim for service connection or increased rating for PTSD. As such, there was no informal claim meeting the requirements of 38 C.F.R. § 3.155 that was filed following the April 2002 rating action and prior to the formal claim filed on June 6, 2003. As noted previously, the effective date of any increase can not precede the date of the receipt of the claim, unless it was factually ascertainable that an increase in disability has occurred during the preceding year, provided that the application is received within one year from such date. Therefore, the Board must review all of the evidence of record to determine whether it is factually ascertainable that an increase in disability had occurred in the year prior to the receipt of the veteran's June 6, 2003, claim. See Hazan, 10 Vet. App. at 511. In this regard, the Board notes that in August 2003, VA received correspondence from the veteran which included a November 2002 private letter from Dr. D.A.B. that indicated that the veteran had severe chronic PTSD. The veteran also submitted copies of emails dated in April 2002 which contained disparaging comments about the veteran. In the August 10, 2005, VA examination, which was the basis for the increase in disability evaluation to 70 percent disabling in the October 2005 RO decision, the examiner concluded that the veteran had PTSD that caused severe occupational impairment. Importantly, the examiner referenced the veteran's statements that her symptoms of anxiety and depression were exacerbated as a result of the terrorist's attacks on September 11, 2001, the anniversary of her son's death, and email harassment. The Board concludes, after resolving all doubt in favor of the veteran, that it was factually ascertainable based on the November 2002 letter from Dr. D.A.B. and the August 2005 PTSD examiner's opinion that the veteran's PTSD met the criteria for 70 percent disabling prior to August 10, 2005. Therefore, because it is factually ascertainable that an increase in the veteran's PTSD occurred more than a year prior to the veteran's claim in June 2003, the effective date for the award of the 70 percent disability rating is June 6, 2002. 38 C.F.R. §§ 3.157(b)(1)&(2); 3.400(o)(2); see also VAOGCPREC 12-98. ORDER Entitlement to an effective date prior to August 10, 2005, for the assignment of a 70 percent disability evaluation for PTSD, is granted effective June 6, 2002. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs