Citation Nr: 1757020	
Decision Date: 12/11/17    Archive Date: 12/20/17

DOCKET NO.  14-14 451	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUE

Entitlement to an effective date earlier than January 22, 2011 for assignment of a 50 percent disability rating for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran and his wife.


ATTORNEY FOR THE BOARD

Z. Sahraie, Associate Counsel


INTRODUCTION

The Veteran had active service in the United States Army from October 1965 to September 1968, to include service in the Republic of Vietnam.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.

The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in March 2017.  The transcript is of record.

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


FINDING OF FACT

From April 16, 2010, the Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to symptoms including impaired memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining relationships.


CONCLUSION OF LAW

The criteria for an effective date of April 16, 2010, for entitlement to a 50 percent disability rating for PTSD, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400, 4.130, Diagnostic Code 9411 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION


Duties to notify and assist

The Veteran's Claims Assistance Act (VCAA) requires the VA to provide notice and assistance to the appellant to substantiate his or her claim. However, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim.  Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).  In view of the Board's favorable decision, further assistance is unnecessary to aid the Veteran in substantiating his claim for entitlement to an earlier effective date.   

Entitlement to an earlier effective date for assignment of a 50 percent disability rating for PTSD

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor.  38 U.S.C.A. § 5110(a).  The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release.  38 U.S.C.A. § 5110(b)(1).  

A claim is defined as 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) (2017).   The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014).  This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2).  These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case.  Id. at 57,686.

The law provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.  38 U.S.C.A. § 5110(b)(2).  Where compensation or pension is increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue.  In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.  38 U.S.C.A. § 5110(g). 

The Court has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating.  See Harper v. Brown, 10 Vet. App. 125, 126 (1997).  Thus, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim).  38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, supra. 

The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates.  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.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  

The Veteran is currently in receipt of a 50 percent disability rating for PTSD effective January 22, 2011, with a 30 percent rating from March 4, 2009 through January 21, 2011.  He contends he should be entitled to an earlier effective date for the assignment of the 50 percent disability rating for his PTSD.  At his Board hearing, the Veteran stated that he believed himself entitled to a 50 percent evaluation for PTSD as of April 16, 2010.  The Board agrees.  

PTSD is evaluated under 38 C.F.R. § 4.130, DC 9411.  However, the actual criteria for rating the disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders.  See 38 C.F.R. § 4.130.  

A 30 percent rating contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as:  depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is assigned when there is 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.

A January 15, 2010 letter submitted b R.S., Psy.D., a treating provider, confirms the Veteran was at that time "exhibit[ing] persistent and increasingly severe PTSD symptoms that...are more pervasively disabling than [previously] estimated."  Among those symptoms, the provider listed the frequent re-experiencing of trauma, hyperarousal, irritability, and angry outbursts.  The provider added that the Veteran's mood and interpersonal functioning were deteriorating.  She concluded, "[t]he depth of [the Veteran's] PTSD is reflected in the stubborn persistence and overall worsening of his symptoms despite his extremely diligent attempt to address his symptoms in our program."  

At a February 2010 VA examination, it was noted that the Veteran "continue[d] to experience weekly nightmares, and [was] isolat[ing] himself from others.  He ha[d] flashbacks of his combat experience and recurrent thoughts.  He tend[ed] to obsess about his experience and [was] easily startled by loud noises and certain odors.  He report[ed] little periods of remission from these thoughts and stated, 'they are with me all the time.'  He [was] hypervigilant and 'always in a state of preparedness.'"  

An April 2010 letter from J.L., the Veteran's social worker confirms the Veteran's mental condition was deteriorating, adding that his initial presentation was often deceptive due to his skill in masking symptoms.  A statement submitted by the Veteran's sister confirms the same, and adds the Veteran had lately become more reclusive, combative, and hypervigilant.  

A May 2010 statement from B.G., another social worker, indicates the Veteran was experiencing worsening nightmares and intrusive thoughts.  She added that he continued demonstrating isolation, detachment, sleep problems, difficulty with concentration, hypervigilance, anxiety attacks, and irritability.  

The Board finds these statements competent and credible.  They are furnished by persons familiar with the Veteran, his history, and his symptomatology.  Moreover, they are consistent with the other evidence of record, which shows the Veteran consistently pursued mental health treatment during the period at issue, albeit to little avail.  These statements show the Veteran's symptoms are more serious than those contemplated by the above-described criteria for a 30 percent rating.  They more closely approximate the criteria for a 50 percent rating.  Specifically, as of April 16, 2010, the Veteran's symptoms have been characterized by impaired judgment, difficulty with concentration, disturbances of motivation and mood, anxiety attacks, and difficulty in establishing and maintaining interpersonal relationships.

In light of the foregoing, the Board finds that satisfaction of the rating criteria for a 50 percent evaluation for PTSD was factually ascertainable on April 16, 2010, the date requested at the hearing, and, as such, entitlement to an earlier effective date of April 16, 2010 is warranted.


ORDER

Entitlement to an effective date of April 16, 2010, for assignment of a 50 percent disability rating for PTSD is granted, subject to the laws and provisions governing the award of monetary benefits.









____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs