Citation Nr: 1124563 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 08-20 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an effective date prior to November 30, 2006, for the award of a 100 percent disability rating for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESSES AT HEARINGS ON APPEAL Appellant, his friend, and his wife ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to November 1974 and from November 1975 to May 1976. This matter comes to the Board of Veterans Appeals (Board) on appeal from an April 2007 decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In January 2008, the Veteran, his wife, and a friend testified at a Decision Review Officer (DRO) hearing. In August 2009, the Veteran and his wife testified at a hearing before the undersigned at the RO. FINDINGS OF FACT 1. The September 15, 2005, rating decision that granted service connection for PTSD effective from September 17, 1992, and assigned his PTSD a 30 percent disability rating from September 17, 1992, as well as a 50 percent disability rating from December 11, 2001, is final. 2. The record does not show that the Veteran filed a claim for an increased rating for PTSD between September 15, 2005 and November 30, 2006, and the medical and lay evidence of record shows that a factually ascertainable worsening of the Veteran's symptoms did not occur at any time from September 15, 2005, to November 30, 2006. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to November 30, 2006, for the award of a 100 percent disability rating for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.321, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2008). Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits. The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain. Thirdly, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A. In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (1) veteran status; (2) existence of a disability; (3) a connection between the claimant's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C. § 5103(a). Initially, the Board finds that there is no issue as to whether the claimant was provided an appropriate application form or issue as to his status. The notice that the Veteran was provided before the claim was granted was legally sufficient (i.e., the March 2007 38 U.S.C.A. § 5103(a) notice letter provided to the Veteran prior to the April 2007 rating decision). Additional notice was provided in June 2007. The Veteran's claim was last readjudicated in the June 2008 statement of the case. VA's duty to notify in this case has been satisfied. VA has also secured all available pertinent evidence and conducted all appropriate development. Specifically, the record shows that VA obtained and associated with the claim's file all identified and available treatment records including his records on file with the Social Security Administration (SSA) and his records from the Jackson and Dayton VA Medical Centers. In addition, the claimant was afforded an opportunity to testify at a personal hearing before the undersigned in August 2009. In summary, the facts relevant to this appeal have been properly developed and 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. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The Claim The Veteran and his representative in writings to the RO and personal hearing testimony assert that the claimant's 100 percent rating for PTSD should date back to his 1992 application to reopen his claim of service connection for PTSD because he met the criteria for a 100 percent rating at that time. It is also requested that the Veteran be afforded the benefit of the doubt. If a Veteran files a claim for an increased rating with VA and the claim is disallowed he has the right to appeal that disallowance to the Board. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2010). If the Veteran does not perfect an appeal, however, the disallowance becomes final. See 38 U.S.C.A. § 7105. Similarly, denials of claims by the Board are final on the date the decision is issued by the Board. 38 U.S.C.A. § 7104 (West 2002). The finality of that rating decision can only be upset upon a finding of clear and unmistakable error (CUE). See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.105 (2010) With the above criteria in mind, the record shows that following the Veteran's 1976 separation from his second period of military service he made a number of claims of service connection for a psychiatric disorder including PTSD. However, these claims were thereafter denied in July 1982 and March 1984 rating decisions as well as in an October 1983 Board decision. The Veteran did not appeal these decisions and they therefore became final. See 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302 (2010). Likewise, the Board notes that, following a September 1992 application to reopen his claim of service connection for PTSD, the RO in a September 15, 2005, rating decision granted service connection for PTSD effective from September 17, 1992, and assigned his PTSD a 30 percent disability rating from September 17, 1992, as well as a 50 percent disability rating from December 11, 2001. On September 16, 2005, the RO mailed to the Veteran's last address of record notice of this rating decision. The Veteran did not thereafter appeal the rating decision. Therefore, the September 15, 2005, rating decision became final. Id; Also see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that free-standing claims for earlier effective dates have no legal merit). As to CUE in the September 15, 2005, rating decision, the Board finds that it cannot decide this issue because the Veteran has never made such a claim and this issue has not previously been adjudicated by the RO. See 38 C.F.R. §§ 20.200, 20.202, 20.302. Consequently, the effective date for the assignment of a 100 percent rating for PTSD may be no earlier than a new application, at some point in time after the final September 15, 2005, rating decision. In this regard, 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 the 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 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), 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 intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Moreover, if a formal claim for compensation has previously been allowed, or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of a VA examination or VA hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157. As to reports prepared by VA or the uniformed services, the date of receipt of such a claim is deemed to be the date of outpatient or hospital examination, or date of admission to a VA or uniformed services hospital. For all other reports, including reports from private physicians, laypersons, and state and other institutions, the date of receipt of the report is accepted as the date of receipt of an informal claim. Id. 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). In evaluating evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). With the above criteria in mind, the Board finds that the next writing that acts as a claim for an increased rating for the Veteran's PTSD is a VA Form 21-4138, Statement in Support of Claim, received by the RO on November 30, 2006. The Board finds that this document acts as the Veteran's formal claim as defined by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. (Thereafter, the RO treated the Veteran's April 2007 assertion of entitlement to an earlier effective date for the 100 percent rating as a "new claim." The Board construes the April 2007 statement as a timely "notice of disagreement" with the effective date assigned the 100 percent rating in the April 2007 rating decision. Thus, the rating decision on appeal is the April 2007 rating decision.) The Board will next see if the record contains an earlier informal claim or an earlier showing of entitlement. In this regard, the Board finds that while the record includes a number of post-September 15, 2005, writings from the Veteran, the record does not include any writings received by the RO prior to November 30, 2006, any VA treatment records dated between September 15, 2005, and November 30, 2006, or any private treatment records received by VA between September 15, 2005, and November 30, 2006, that could act as an earlier informal claim for an increased rating for PTSD. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.157, 3.400. VA treatment records dated in January 2006 and February 2006 only note the usual generalized complaints and do not reflect new and material evidence of an ascertainable worsening of the Veteran's symptoms since the September 2005 rating decision. 38 C.F.R. § 3.156(b) (2010). Because the effective date for an increased rating can be up to one year prior to receipt by the RO of the claim for an increased rating, the question remaining for the Board to consider is whether the record established an earlier factual entitlement to a 100 percent rating for PTSD at some time between September 15, 2005, and November 30, 2006. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98. In this regard, the Board notes that disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2010). Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2010). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2010). Historically, the Veteran's PTSD was rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. During 2005 and 2006, Diagnostic Code 9411 provided, as it does today, that a 70 percent rating contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent schedular evaluation is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self 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. 38 C.F.R. § 4.130 (2005). The above set of symptoms is not an exclusive or exhaustive list. Rather, it serves as an example of the symptoms that would justify a total rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). With the above criteria in mind, the Board notes that a review of the September 15, 2005, to November 30, 2006, record shows that the only relevant VA treatment records generated during this time period, or private treatment records received during this time period, are VA therapy records dated in January 2006 and February 2006. As to the severity of the Veteran's PTSD as seen in these records, the therapist noted that he was hypervigilant, was very negative in his speech and behavior, he had a liable affect and frequently appeared to be fighting back tears, felt victimized, was irritable when interrupted and his wife was concerned about his anger and felt he should be hospitalized, he had a high level of arousal, and/or was extremely distrustful and paranoid. It was also noted that the Veteran was not taking his medications. However, it was also noted that he was alert and oriented, clean and casually groomed, and/or denied wanting to harm himself or others. Additionally, it was noted that, while he was distrustful of his wife, he nonetheless remained married and loves her. These symptoms are consistent with evidence of record at the time of the September 2005 rating decision. For example, an October 2004 VA treatment record showed that the Veteran was brought to the therapy session by his wife because of his "extreme frustration." The Veteran was not taking his medication. The Veteran's wife reported that she was receiving counseling because of the Veteran's anger. Dr. E.R. observed that the Veteran looked and gestures were very angry and frustrated. Another October 2004 VA treatment record showed that the Veteran reported that he was living separate from his wife, and he described an intense confrontation with his step-son. He was alert and cooperative. His speech was coherent. His affect was appropriate to somewhat irritable mood. He denied any suicidal or homicidal ideations. He did not appear to be at risk of harm to self or others. He denied hallucinations or delusions. In contrast, the April 2007 rating decision shows the assignment of the 100 percent rating was based primarily on the findings reported in the January 2007 VA examination report. These VA examination findings are more than one year from the September 2005 rating decision. 38 C.F.R. § 3.156(b) (2010). It is also very significant that it is not the contention of the Veteran, his wife, and his friend, that the Veteran's disability became totally disabling in the year up to filing the November 2006 claim, but rather that his symptoms have been totally disabling since 1992. Again, the Board cannot entertain a free-standing claim for an earlier effective date as this would be contrary to the law. Also, the effective date for ascertainable increases more than one year prior to receipt of claim is the date of the claim. Thus, the medical and lay evidence of record shows that a factually ascertainable worsening of the Veteran's symptoms did not occur at any time from September 15, 2005, to November 30, 2006. As previously noted, 38 C.F.R. § 3.400(o)(2) is intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty and not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. Accordingly, the Board finds that the Veteran is not entitled to an effective date prior to November 30, 2006, for the award of a 100 percent disability rating for PTSD. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim the doctrine is not for application. 38 U.S.C.A. § 5107. ORDER Entitlement to an effective date earlier than November 30, 2006, for the award of a 100 percent disability rating for PTSD is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs