Citation Nr: 1309455 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 07-21 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date earlier than August 23, 2002, for the assignment of a 50 percent rating for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from February 1966 to September 1968. Service records show that he was awarded a Purple Heart. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2003 and May 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The February 2003 rating decision assigned a 50 percent rating to the PTSD from August 23, 2002, the date of receipt of the claim for an increase. In a May 2009 rating decision, the RO denied entitlement to an effective date earlier than August 23, 2002, for the assignment of a 50 percent rating for PTSD. In July 2008 and November 2010, the Veteran testified at hearings before a decision review officer and the undersigned Veterans Law Judge, respectively. Transcripts of both hearings have been associated with the claims file. The case was remanded by the Board in January 2011 to obtain additional VA treatment records from August 2001 to August 2002. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's current claim for an increased rating for PTSD was received on August 23, 2002. 2. There is no evidence of record, during the year prior to August 23, 2002, which demonstrates that it is factually ascertainable that an increase in disability occurred so that the Veteran became entitled to a 50 percent disability rating for his PTSD. CONCLUSION OF LAW The criteria for an effective date earlier than August 23, 2002, for the assignment of a 50 percent rating for PTSD have not been met. 38 U.S.C.A. §§ 5101, 5103, 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his 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). The 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was notified in a letter dated in November 2002 of what the evidence must show to establish entitlement to the benefit sought, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The May 2009 rating decision informed the Veteran of the criteria for establishing an effective date. Following this rating decision, the Veteran's claim was readjudicated in a June 2010 statement of the case (SOC). See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Regarding VA's duty to assist, VA obtained the Veteran's post-service medical records. VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. In finding that there are no additional pertinent records, as noted in the Introduction, this case was remanded in January 2011 to obtain VA treatment records in the one year period prior to the receipt of the Veteran's claim in August 2002. In February 2011 and June 2011, the Appeals Management Center (AMC) requested records from the VA healthcare system in Connecticut. Negative responses were received in April 2011 and June 2011. A September 2011 formal finding as to the unavailability of those records sets forth the AMC's efforts to obtain those records as well as confirming that the Veteran was notified that no such records existed. Indeed, a report of contact with the Veteran also dated in September 2011 indicates that he was not living in Connecticut from 2001 to 2002, but lived in Mobile, Alabama. A review of the Veteran's VA treatment records from Mobile show that he was a new patient in August 2002, indicating that Mobile records prior to then do not exist. Consequently, a remand to search for Mobile records prior to August 2002 is not warranted. Although not directed by the Board, the AMC also tried to obtain Vet Center records prior to August 2002. Negative responses were received from the Vet Center in Hartford, Connecticut in May 2011 and August 2011. A May 2011 Vet Center printout indicates that the Veteran had initial contacts with locations in Mobile in June 2002 and Biloxi, Mississippi in October 2002. In this regard, an April 2006 Mobile Vet Center letter indicates that the Veteran was a client beginning July 23, 2002. Although no request for Mobile Vet Center records beginning in July 2002 has been made, the Board finds that a remand to do so is not necessary. The Veteran has not indicated that pertinent Vet Center records showing the severity of his PTSD prior to the date of claim exist. In the September 2011 report of contact with the AMC, the Veteran specifically denied having any other information to submit. In other words, although the Veteran might have been an initial client beginning in July 2002, the evidence does not suggest that there are individual treatment records showing symptoms sufficient to rate his PTSD. Therefore, the Board finds that a remand to request Vet Center records is not required, as such remand would result in no additional benefit to the appellant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). The Veteran was also provided with two hearings related to his present claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issue on appeal, but did not note the specific elements necessary to substantiate the earlier effective date claim or suggest the submission of any additional evidence. This was not necessary, however, because the Veteran volunteered his information regarding his treatment and symptom history, thus fully describing why he believed an earlier effective date was warranted. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). II. Analysis The Veteran contends that he is entitled to an effective date earlier than August 23, 2002, for the assignment of a 50 percent rating for PTSD. See, e.g., November 2003 notice of disagreement. To the extent that the Veteran's contentions show a claim of clear and unmistakable error (CUE) in an April 1983 rating decision that granted service connection for PTSD but only assigned a noncompensable rating, such claim was denied by the Board in January 2011. The Veteran did not appeal that denial. Consequently, the Board will not address contentions indicating CUE in the April 1983 decision. 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) (West 2002) and 38 C.F.R. § 3.400(o) (2012). The general rule as to the effective date of an award of increased compensation is that the effective date of the 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); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). Any communication or action, indicating an intent to apply for VA benefits from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2012). The date of receipt of evidence from a private physician or a lay person will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows a reasonable possibility of entitlement to benefits. 38 C.F.R. § 3.157(b)(2) (2012). Also, the date of VA outpatient or hospital examination, or the date of admission to a VA or uniformed services hospital, will be accepted as the date of receipt of a claim when the report of such treatment or examination relates to a disability for which increased compensation is sought. 38 C.F.R. § 3.157(b)(1) (2012). Based on a review of the evidence, the Board concludes that an effective date earlier than August 23, 2002, for the assignment of a 50 percent rating for PTSD is not warranted. In this case, there is no contention that the Veteran appealed the April 1983 rating decision that assigned a noncompensable rating for PTSD. As no CUE in that decision has been found, the April 1983 determination is final. In finding that the April 1983 rating decision is final, the Board is cognizant of the recent holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011). In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362 (2012). Here, no additional evidence pertinent to the issue of the severity of the Veteran's PTSD was received between the April 1983 rating decision and the August 23, 2002, increased rating claim. The April 1983 rating decision is thus final. As such, entitlement to an earlier effective date for a 50 percent rating for PTSD is not warranted on this basis. A claim for an increased rating for PTSD was received by the RO on August 23, 2002. The evidence does not show, nor does the Veteran contend, that an informal or formal claim for an increase was filed prior to August 23, 2002. A review of the claims file fails to show that any claim was received between the April 1983 rating decision awarding service connection with a noncompensable rating and the August 23, 2002, increased rating claim. As no claim was filed prior to August 23, 2002, an earlier effective date based on an earlier claim is not warranted. As the April 1983 rating decision is final and as no claim was received prior to August 23, 2002, the Veteran can only be granted an earlier effective date if there is medical evidence of record within the one year period prior to August 23, 2002, showing that the 50 percent rating was warranted. In this case, the pertinent evidence fails to show that the Veteran's PTSD warranted a rating of 50 percent prior to the August 23, 2002, claim. The earliest VA treatment records pertaining to the Veteran's PTSD obtained in connection with this claim are dated in August 2002. The Veteran reported being a new patient when seen by VA in August 2002. As already discussed above, the Board remanded this issue to obtain treatment records dated from August 2001 to August 2002, but no such records were found. There is no medical evidence of record showing the severity of the Veteran's PTSD between August 2001 and August 2002. In finding that the evidence of record does not support a finding that the Veteran's PTSD warranted a 50 percent rating prior to August 23, 2002, the Board acknowledges the April 2006 Vet Center letter indicating that the Veteran had been a client since July 23, 2002. The letter indicates that the Veteran was seen in both group and individual sessions. However, the letter does not indicate that any records exist prior to August 23, 2002, showing the Veteran's particular symptoms associated with PTSD. It also does not indicate that any records prior to August 23, 2002, included mental status examinations such that the criteria for a 50 percent rating were factually ascertainable. As noted above, when notified by the AMC that VA records prior to August 2002 could not be obtained, the Veteran specifically reported having no additional information to submit. Therefore, an earlier effective date based on evidence showing that an increase in disability has occurred in the one year prior to the August 23, 2002, claim is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to an effective date earlier than August 23, 2002, for the assignment of a 50 percent rating for PTSD is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an effective date earlier than August 23, 2002, for the assignment of a 50 percent rating for PTSD is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs