Citation Nr: 1339282 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 11-07 745 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a higher initial rating for post traumatic stress disorder (PTSD), currently rated as 70 percent disabling. 2. Entitlement to an effective date earlier than September 1, 2009, for service connection for PTSD. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in October 2010; a statement of the case was issued in March 2011; and, a substantive appeal was received in March 2011. The April 2010 rating decision granted service connection for PTSD and granted a 50 percent disability rating. The RO subsequently issued a March 2011 rating decision in which it increased the rating to 70 percent, effective September 1, 2009 (the date of the claim). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a higher initial rating for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran did not file a claim, either formal or informal, for service connection for a psychiatric disability, to include PTSD, prior to September 1, 2009. CONCLUSION OF LAW The criteria for assignment of an effective date earlier than September 1, 2009, for the grant of service connection for PTSD, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013) REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In a September 2009 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Relevant service treatment and other medical records have been associated with the claims file. The duties to notify and to assist have been met. Earlier Effective Dates In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in a current disability was incurred in active service, or if pre-existing active service, was aggravated therein. See 38 U.S.C.A. § 1110; 38 C.F.R. §3.303. Service connection may be granted for a disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided, the effective date for an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Unless specifically provided, such determination is made on the basis of the facts found. 38 C.F.R. § 3.400(a). Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her 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. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for completion. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. 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. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157. 38 C.F.R. § 3.157 (b)(2), specifically indicates that the date on which evidence is received from a private physician or layman is the date which will be used for effective date purposes. The Veteran has presented no rationale for his contention that the effective date of service connection for PTSD should be earlier that September 1, 2009. His claim was received on September 1, 2009. There is no evidence that the Board can construe as either a formal or informal claim within one year of separation from service. In fact, no evidence of any kind was received within one year of service. The first post service evidence consists of an August 1972 claim for a back disability. The only other post service evidence that pre-dates September 1, 2009 consists of three pages of medical records reflecting sun damage to the Veteran's skin. As noted above, the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. In the absence of any claim received within one year after separation from service, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. Consequently, the Board cannot find any justification for the effective date of service connection to pre-date the claim, which was received September 1, 2009. ORDER Entitlement to an effective date prior to September 1, 2009 for the grant of service connection is denied. REMAND The Veteran's most recent psychiatric examination occurred in March 2010. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). In this case, the Veteran's representative noted in a November 2013 Brief that the Veteran's condition has progressively worsened since the most recent examination. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should schedule the Veteran for a VA psychiatric examination for the purpose of determining the current severity of his PTSD. It is imperative that the claims file be made available to the examiner for review in connection with the examination. 2. After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted. If the claim remains denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs