Citation Nr: 1603121	
Decision Date: 02/01/16    Archive Date: 02/11/16

DOCKET NO.  15-33 434	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to an effective date earlier than November 15, 2013, for the award of a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).

2.  Entitlement to an effective date earlier than November 15, 2013, for the award of a 70 percent rating for service-connected posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	African American PTSD Association


WITNESSES AT HEARING ON APPEAL

Appellant and his daughter


ATTORNEY FOR THE BOARD

T. Adams, Counsel


INTRODUCTION

The Veteran served on active duty from January 1955 to December 1963.
 
These matters are on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Seattle, Washington.

The Veteran testified before Decision Review Officer (DRO) in June 2015, and before the undersigned Veterans Law Judge (VLJ) in November 2015.  Transcripts of both hearings are of record.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records.

The issue of entitlement to an earlier effective date for the award of 10 percent disability ratings for a right knee disability was raised in a November 2014 statement and the issues of entitlement to an earlier effective date for the grants of service connection for a scar, TBI, and PTSD were raised during the June 2015 DRO hearing and November 2015 Board hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015). 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  On November 15, 2013, the Veteran filed a claim for an increased rating for PTSD and a TDIU.

2.  Prior to November 15, 2013, the Veteran's PTSD was shown to result in occupational and social impairment, with deficiencies in most areas due to such symptoms as: suicidal ideation, anxiety, nightmares, near-continuous depression, difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships.

3.  It is factually ascertainable that the Veteran's service-connected disabilities precluded substantially gainful employment on November 15, 2012.


CONCLUSION OF LAW

Criteria for an effective date of November 15, 2012, but no earlier, for the assignment of a 70 percent disability rating for PTSD, and an award of a TDIU rating, have been met.  38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. §§ 3.400, 4.16, 4.130, Diagnostic Code (DC) 9411 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Historically, after several prior denied claims for service connection for PTSD, in March 2013, the RO granted service connection for PTSD and assigned a zero percent (noncompensable) disability rating, effective from October 14, 2011 (date of service connection claim).  In October 2013, the RO increased the rating from zero percent to 50 percent, effective from October 14, 2011.

On November 15, 2013, the Veteran filed a claim for an increased rating for PTSD and for TDIU.  In an August 2014 rating decision, the RO awarded a TDIU rating and assigned a 70 percent disability rating for TDIU, effective from November 15, 2013.  In November 2014, the Veteran filed a notice of disagreement, expressing dissatisfaction with the effective date assigned for the 70 percent disability rating for PTSD and the award of a TDIU.

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400, 3.400(b)(2) (2015).  TDIU is considered a claim for increased evaluation, and for such claims, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within 1 year from such date, otherwise the date of receipt of claim.  38 C.F.R. § 3.400(o)(2); Hurd v. West, 13 Vet. App. 449 (2000) (emphasis added).

The Veteran's PTSD is rated pursuant to the rating criteria outlined under 38 C.F.R. § 4.130, ratings of mental disorders.  Under DC 9411, a 70 percent is assigned where there is evidence of 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); and inability to establish and maintain effective relationships.  Thus, the threshold question before the Board is whether the Veteran was entitled to a 70 percent rating prior to November 15, 2013.

On March 2013 VA mental health examination, the examiner noted that VA treatment records include a January 2011 report from the Veteran's treating psychiatrist which indicates that he had nightmares, suicidal ideations, anxiety, depression, impaired memory, increased anger, auditory hallucinations, and hypervigilance which affected his relationships with others.
His rating was subsequently increased to 70 percent effective from November 15, 2013.  However, the Board finds that the weight of the evidence indicates that an effective date of November 15, 2012, for the assignment of a 70 percent rating for the Veteran's PTSD is warranted, based on a finding that it was factually ascertainable an increase in disability had occurred.  The January 2011 treatment record referenced in the March 2013 VA examination supports a finding that the Veteran's PTSD symptomatology warranted a 70 percent disability rating prior to November 2013.

Accordingly, given the facts noted above and resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for an effective date of November 15, 2012, but no earlier, for the award of a 70 percent disability evaluation for PTSD, are met.  Thus, under the standard set forth in 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(O), an effective date of November 15, 2012, is warranted for a 70 percent rating.

With regard to the claim for an effective date earlier than November 15, 2013, for the award of TDIU, in light of the Board's grant of an effective date of November 15, 2012, for the award of a 70 percent disability rating for the Veteran's PTSD, the Board finds that the award of TDIU, is also warranted, effective from November 15, 2012-the date when he first met the minimum schedular requirements for TDIU under 38 C.F.R. § 4.16(a).  Prior to November 15, 2012, the Veteran's combined disability rating was 60% for PTSD, right knee disabilities, a scar from a head injury, and TBI and he did not meet the percentage criteria of 38 C.F.R. § 4.16(a).  The Board has no basis in the law to go further back, based on when the Veteran filed the claims, and when they were granted and/or denied, and when (or if) he appealed.

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).
In this case, the evidence currently of record is sufficient to substantiate this claims.  Therefore, no further development is required.

The Veteran also testified at a hearing before the undersigned Veterans Law Judge (VLJ) in November 2015.  A hearing officer who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Here, during the hearing, the Veteran was assisted by a representative, and both the representative and the VLJ asked relevant questions concerning the issues on appeal.  The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2).

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159.


ORDER

An effective date of November 15, 2012, but not earlier, for the assignment of a 70 percent disability rating for PTSD, and an award of a TDIU rating, is granted.



____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs