Citation Nr: 1634401	
Decision Date: 09/01/16    Archive Date: 09/09/16

DOCKET NO.  12-12 589	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to an earlier effective date than April 1, 2009, for the grant of a 50 percent evaluation for post-traumatic stress disorder (PTSD).  


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Steve Ginski, Associate Counsel



INTRODUCTION

The Veteran served on active duty from May 1985 to February 1993.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania.

In a June 2010 rating decision, the RO assigned a 50 percent evaluation, effective April 1, 2010.  In the August 2010 rating decision, the RO found clear and unmistakable error in that rating decision and assigned the 50 percent evaluation effective April 1, 2009.  

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA electronic claims file.  Virtual VA contains documents that are either duplicative of the evidence in the VBMS electronic claims file or not relevant to the issue on appeal.


FINDINGS OF FACT

1.  An increased disability rating for PTSD was denied in an October 2002 rating decision; the Veteran did not perfect an appeal to this decision.  

2.  A claim for an increased evaluation for PTSD was received on April 1, 2009; no earlier informal or formal claim was received.

3.  It is not factually ascertainable that an increase in PTSD occurred in the one-year period prior to April 1, 2009.



CONCLUSIONS OF LAW

1.  The October 2002 rating decision denying an increased evaluation for PTSD is final.  38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2015).

2.  The criteria for an effective date prior to April 1, 2009, for a 50 percent rating for PTSD have not been met. 38 U.S.C.A. § 5103, 5103A, 5107(b), 5110 (West 2014); 38 C.F.R. §§ 3.350, 3.400 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA's duty to notify was satisfied by a letter dated in January 2010.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Relevant to the duty to assist, the Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein.  The record includes written statements provided by the Veteran and his representative.  In addition, the Veteran was afforded a VA examination in March 2010.  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. 

II.  Effective Date for an Increased Evaluation

Generally, 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 the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400.  An exception to this general rule, is that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date, otherwise, the date of receipt of the claim.  38 U.S.C.A. § 5110 (b); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an increase for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998).

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 the laws administered by VA.  38 U.S.C.A. § 5101 (a); 38 C.F.R. § 3.151 (a).  The term claim or application means 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).  Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant 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 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.  Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits.  38 C.F.R. § 3.157 (b).  The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim 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 (b).  A report of examination implies that the medical record describes the results of a specific, particular examination and reflects a worsening of the condition.  Massie v. Shinseki, 25 Vet. App. 123, 133-34 (2011) (noting that a letter from a VA physician generated for a pending Social Security claim was not a report of examination).

The Veteran contends the effective date of the grant of an increased evaluation should be earlier than April 1, 2009.  In her September 2010 notice of disagreement, she contends that the effective date for the 50 percent evaluation should be "one of the dates [she] originally applied for an increase, but was denied."  She cited to letters received from VA in 2002, and expressed her belief that the effective date of the award should be during that time period.  

Procedurally, in an October 1997 rating decision, the RO granted service connection for PTSD and assigned a 30 percent evaluation, effective April 25, 1997.  In May 2002, the Veteran requested an increased evaluation for her service-connected PTSD.  In an October 2002 rating decision, the RO denied her request.  Shortly thereafter, still in October 2002, the Veteran submitted a notice of disagreement.  In January 2004, the RO issued a Statement of the Case.  The RO also issued a January 7, 2004, notification letter with an enclosed VA Form 9, Appeal to the Board of Veterans' Appeals.  The letter detailed that the Veteran had 60 days from the date of the letter to submit the completed VA Form 9 in order to perfect her appeal.  VA did not receive a VA Form 9 from the Veteran.  Thus, the October 2002 rating decision denying the Veteran's claim for an increased evaluation for PTSD is final, and the matter was not in appellate status prior to the instant appeal.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.  

After the 2004 SOC, no other communication was received from the Veteran until 2006.  A letter detailing the Veteran's benefits was sent to her in 2006, but it was returned.  In February 2006, the Veteran submitted a form regarding her dependents.  Then, on April 1, 2009, the Veteran submitted an informal claim regarding various disabilities, although PTSD was not listed on the submission.  In a May 2009 authorization and consent form, however, she addressed her PTSD.  The RO thus concluded her claim was made on April 1, 2009.

Medically, after the 2002 rating decision, VA records dated in 2002 and 2003 do not show treatment for PTSD.  In a December 2008 VA record, the Veteran requested a renewal of her Prozac.  She denied thoughts of harm to self or others.  There are no other medical records or statements from the Veteran in the year prior to April 2009.  In a May 2009 submission, the Veteran reported continual bad dreams, nightmares, and depression.  In the March 16, 2010 VA examination, the Veteran reported consistent depression, poor concentration, a loss of interest in sex.  She reported consistently experiencing flashbacks, frequent nightmares at least once per week, and diminished self-confidence, drive, energy, and self-esteem.  Her relationship with her husband is platonic.  She was not trusting of people and it is difficult for her to form meaningful relationships.  She has a good relationship with her siblings.  Upon examination, the Veteran was fully oriented, with normal insight and judgment, intact sensorium, and no evidence of psychotic features.  The examiner found the Veteran's social life and relationships markedly affected by her PTSD.  

Under the general rule, the effective date is the later of the date of claim or the date entitlement arose.  38 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400 (o)(1).  Here, the date of receipt of the claim as determined by the RO was April 1, 2009.  Prior to that date, there is no other communication after the 2002 rating decision that can be construed as a formal or informal claim.  38 C.F.R. §§ 3.1 (p), 3.155 (a); Quarles, 3 Vet. App. at 134.  There are no VA medical records that may be accepted as an earlier claim for an increased evaluation, because after the October 2002 rating decision, the next VA medical record was the December 2008 record in which she requested renewal of a medication.  See 38 C.F.R. § 3.157 (b).  Thus, the date of claim is April 1, 2009.

The date of entitlement to the 50 percent evaluation is the March 16, 2010 VA examination because no prior medical or lay evidence of record indicated the Veteran's PTSD manifested in occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2015).  Thus, under the general rule, the proper effective date is March 16, 2010.  Accordingly, under the general rule, an effective date prior to April 1, 2009 is not warranted. 

Under the exception, however, an earlier effective date may be granted on the date of a factually ascertainable increase in PTSD, if such increase occurred within the one-year period preceding the date of the claim.  38 U.S.C.A. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2).  Accordingly, as noted above, the Board has reviewed the evidence of record during the course of the appeal period and prior to the appeal period.  The Board finds that there was not a factually ascertainable increase in disability in the one year prior to April 1, 2009.  Records reviewed in arriving at this determination include the Veteran's VA treatment records.  While they document the Veteran contacting VA to renew her medication, Prozac, they do not represent an ascertainable increased in disability.  Other than citing to a now final claim of entitlement to an increased evaluation for her PTSD, the Veteran has not identified or submitted any evidence demonstrating entitlement to an earlier effective date.  

In accordance with VA regulations, the earliest possible effective date for the 50 percent rating for PTSD is the presently assigned date of April 1, 2009.  The Board finds that the criteria for an earlier effective date than April 1, 2009, for the grant of a 50 percent rating for PTSD, have not been met.  


ORDER

Entitlement to an effective date earlier than April 1, 2009, for the grant of a 50 percent rating for PTSD is denied.  



____________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs