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