Citation Nr: 1312004 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 10-48 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an effective date prior to November 18, 2009, for the establishment of a 70 percent rating for posttraumatic stress disorder (PTSD), chronic severe: depression, recurrent; alcohol abuse episodic. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2000 to June 2000. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted a higher 70 percent disability rating for the Veteran's service-connected PTSD, effective November 18, 2009. The Veteran filed a notice of disagreement (NOD) with the effective date of the 70 percent disability rating assigned for his PTSD in February 2010, and timely perfected his appeal in December 2010. Subsequently, in a July 2010 rating decision, the RO continued the 70 percent disability rating for the Veteran's PTSD. FINDINGS OF FACT 1. The Veteran filed a claim for an increased disability rating for service-connected PTSD on August 10, 2009. 2. In a September 2009 rating decision, the RO denied the claim of an increased disability rating in excess of 50 percent for the Veteran's service-connected PTSD. 3. In a November 2009 statement, the Veteran stated that he wished to reopen his increased rating claim, be rescheduled for a C&P examination, and to cancel any appeal action. Subsequently, the Veteran was scheduled for a VA examination in January 2010. 4. This evidence received by VA (January 2010 VA examination) was received within a year of the September 2009 rating decision and constituted new and material evidence that prevented the finality of that rating decision. 5. In a January 2010 rating decision, the RO awarded an increased disability rating of 70 percent for service-connected PTSD based on the January 2010 VA examination report that had not been associated with the claims file at the time of the September 2009 denial of an increased disability rating for PTSD. 6. It is factually ascertainable that the Veteran met the requirements for the higher 70 percent disability rating for service-connected PTSD as of August 10, 2009, the date of the original increased rating claim. CONCLUSION OF LAW The criteria for an earlier effective date of August 10, 2009, for a higher 70 percent rating for PTSD and depression are met. 38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.155, 3.156(b), 3.157, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the February 2010 NOD, the Veteran disagreed with the effective date for the establishment of a 70 percent disability rating for his psychiatric disability, requesting an earlier effective date of August 10, 2009. The Board is granting the Veteran's claim for an earlier effective date to the earlier date requested. Although the Veteran noted that he claimed that an effective date of August 10, 2009 was warranted, the Board notes that he has not affirmatively indicated an intent to withdraw the appeal if such date was granted. As such, the Board will continue with a discussion regarding VCAA compliance. Here, the duty to notify was satisfied by way of letters sent to the Veteran in August 2009 and December 2009 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letters informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. Additionally, the letters also provided notice regarding how disability ratings and effective dates are assigned. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining private and VA medical records, and providing the Veteran with a VA examination in January 2010. The Veteran has not indicated that he has received additional treatment for his service-connected psychiatric disability. The Board thus concludes that there are no additional treatment records outstanding with respect to that claim. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Earlier Effective Dates The assignment of effective dates for increased ratings is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 . The effective date for an increase will be the date of receipt of the claim or the date entitlement arose. 38 C.F.R. § 3.400 . The laws and regulations pertaining to the effective date for an increase have been interpreted as follows: If the increase 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). If new and material evidence is received prior to the expiration of the appeal period, such evidence will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) . "New evidence" means existing evidence not previously submitted to agency decision makers, that are neither cumulative nor redundant of evidence already of record. 38 C.F.R. § 3.156(a) . "Material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence must raise a reasonable possibility of substantiating the claim. Id. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In the January 2010 decision that initiated this appeal, the RO granted an increased rating of 70 percent for the Veteran's service-connected PTSD. The RO initially assigned a retroactive effective date of November 18, 2009, for this higher level of compensation based upon that being the date of receipt of his formal claim requesting this increase in compensation. Since, however, he timely appealed, that decision did not become final and binding on him, so consideration of an earlier effective date may proceed. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a free-standing claim for an earlier effective date as to a previous final and binding decision is not authorized by law). Considering the facts of this case in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that August 10, 2009 is the correct effective date for the award of an increased 70 percent disability rating for the Veteran's service-connected PTSD. The Veteran originally filed a claim for an increased disability rating for PTSD on August 10, 2009. In a September 2009 rating decision, the RO denied an increased disability rating in excess of 50 percent for service-connected PTSD. Generally, an appeal to the Board is initiated by NOD and completed by a substantive appeal after a SOC is furnished to the appellant. 38 U.S.C.A. § 7105(a). In essence, the following sequence is required: There must be a decision by the RO, the claimant must express timely disagreement with the decision (by filing an NOD within one year of the date of mailing of notice of the RO decision), VA must respond by explaining the basis of the decision to the claimant (in the form of a SOC), and finally, the appellant, after receiving adequate notice of the basis of the decision, must complete the process by stating his argument in a timely-filed substantive appeal. See 38 C.F.R. §§ 20.200 , 20.201, 20.202, and 20.204. The Veteran submitted a September 2009 letter in which he expressed his disagreement with the September 2009 rating decision. As this letter constitutes a "written communication" in which the Veteran expressed his disagreement with an adjudicative determination by an agency of original jurisdiction, the Board finds that it is a timely NOD. See 38 C.F.R. § 20.201. Nonetheless, the Veteran submitted a November 2009 statement stating that he wished to reopen his increased rating claim, be rescheduled for a C&P examination, and to cancel any appeal action. The Veteran was subsequently scheduled for a VA examination in January 2010. However, under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b) (2012). In reviewing the claims file in the current appeal, the Board finds that new and material evidence was received within one year of the September 2009 rating decision. Specifically, the Veteran underwent a VA mental disorders examination to assess the current severity of his mental health disabilities. Subsequently, in a January 2010 rating decision, the RO increased the Veteran's disability rating for his PTSD to 70 percent, effective November 18, 2009, the date of his claim to reopen his increased rating claim. However, as new and material evidence was received within one year of the September 2009 rating decision, that decision had not become final, and is properly on appeal before the Board. This is because 38 C.F.R. § 3.156(b) requires that any subsequent decision based on such evidence relate[s] back to the original claim. See 38 C.F.R. 3.156(b) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010); see also Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). As noted, effective date for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 . Accordingly, given the facts noted above and resolving all reasonable doubt in the Veteran's favor on the question of when entitlement to the benefit awarded arose, the Board finds that the criteria for an effective date of August 10, 2009, the date that the Veteran's original increased rating claim was received, for the award of an increased disability rating of 70 percent for PTSD is met. The Veteran reported at the January 2010 VA examination that his psychiatric symptoms were present over the last year. These symptoms included suicidal ideation, despair, hopelessness, crying, poor self worth, distractible, loss of interest in pleasurable things, withdrawal from others, increased irritability, depression, hypervigilence, poor concentration, sleep disruption, sense of future cut short, nightmares, and intrusive recall/thoughts. Specifically, since the date of claim, August 10, 2009, the Veteran's PTSD has been productive of occupational and social impairment, with deficiencies in most areas, 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. Therefore, it was factually ascertainable as of that date, that he was entitled to this additional compensation for his PTSD, as there was nothing of record to suggest otherwise. See 38 C.F.R. § 3.400(o)(2). Lastly, the Board notes that in an April 2008 rating decision, the Veteran's disability rating was increased to 50 percent for PTSD. The Veteran did not appeal this decision and as such, it is final. 38 U.S.C.A. § 7103(a); 38 C.F.R. § 20.1103. A "claim" 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) (2012). Any communication or action indicating an intent to apply for one or more benefits administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Subsequent to the final April 2008 rating decision and prior to the August 2009 increased rating claim, the Veteran did not submit and the evidence of record did not indicate any formal or informal claims for an increased rating for his PTSD. Specifically, there are no VA hospitalization or examination reports of record during that time period. Therefore, an effective date prior to August 10, 2009 is not warranted. ORDER Entitlement to an earlier effective date of August 10, 2009, but no earlier, for the assignment of a 70 percent disability rating for PTSD, chronic severe: depression, recurrent; alcohol abuse episodic, is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs