Citation Nr: 1803556 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-34 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an effective date earlier than June 16, 1997, for the award of service connection for a left eye condition. 2. Entitlement to an effective date earlier than March 10, 2003, for the award of a 50 percent rating for service-connected posttraumatic stress disorder (PTSD) and dysthymic disorder. 3. Entitlement to an initial compensable rating from June 16, 1997, to November 25, 2003, for service-connected left eye condition. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1990 to May 1994, and from September 2005 to July 2012. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Appeals Management Center and a November 2013 rating decision issued by the VA Regional Office (RO) in New York, New York. On multiple occasions, the Veteran requested a hearing before a Veteran Law Judge. In May 2016, however, he withdrew his request. See 38 C.F.R. § 20.704(e) (2017). In November 2013, the RO issued a rating decision that granted an earlier effective date for the award of service connection for a left eye condition, and assigned a noncompensable rating from June 16, 1997 to November 25, 2003. Thereafter, the Veteran filed a notice of disagreement in November 2013 with the initially assigned rating; however, as will be discussed further below, a statement of the case has not been provided as to that issue. See Manlincon v. West, 12 Vet. App. 238 (1999). The issue of entitlement to an initial compensable rating from June 16, 1997, to November 25, 2003, for service-connected left eye condition is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Following a May 2010 Board decision that granted service connection for a left eye condition, a May 2010 rating decision effectuated the Board decision and assigned an effective date of November 25, 2003. 2. A November 2013 rating decision granted an earlier effective date of June 16, 1997, for the award of service connection for the Veteran's left eye condition. 3. The record contains no informal claim, formal claim, or any written intent to file a claim for service connection for a left eye condition prior to June 16, 1997. 4. In a June 1995 rating decision, the AOJ granted service connection for a nervous condition diagnosed as PTSD and dysthymic disorder, and assigned a 10 percent disability rating effective May 30, 1994, under Diagnostic Code 9405. The Veteran did not initiate an appeal of this decision. 5. Following the June 1995 rating decision, the Veteran raised a claim for an increased rating for his psychiatric disability during a June 16, 1997 hearing before the Board. 6. Resolving all reasonable doubt in the Veteran's favor, effective June 16, 1997, his PTSD and dysthymic disorder was of such a severity so as to warrant a 50 rating under Diagnostic Code 9411; however, prior to June 16, 1997, it was not factually ascertainable that an increase in disability took place. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 16, 1997, for the award of service connection for the Veteran's left eye condition have not been met. 38 U.S.C. § 5110 (2014); 38 C.F.R. §§ 3.155, 3.157 (in effect prior to March 24, 2015), 3.400 (2017). 2. The criteria for an effective date of June 16, 1997, but no earlier, for the award of a 50 percent rating for service-connected PTSD and dysthymic disorder are met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.155, 3.157 (in effect prior to March 24, 2015), 3.400, 4.125, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with respect to the issues decided on the merits below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Analysis A. Effective Date for the Award of Service Connection for Left Eye Condition In his September 2010 notice of disagreement, the Veteran contended that an effective date of September 1994 was appropriate for the award of service connection for his left eye condition, as that was the date he was awarded service connection for left fascial palsy, the disability that was determined to have caused his service-connected left eye condition. See May 2010 Board Decision. Generally, the effective date for an award based on, inter alia, an original claim or a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). If, however, a claim for service connection is received within a year following separation from service, the effective date will be the day following separation; otherwise, the effective date is the date of the claim. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). 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. § 5101(a); 38 C.F.R. § 3.151(a). 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 are applicable with respect to claims and appeals filed on or after March 24, 2015, and, therefore, are not applicable in the present case. Id. at 57,686. Under the former regulations, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2014). 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. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Under former 38 C.F.R. § 3.157(a) (which was in effect prior to March 24, 2015), a report of examination or hospitalization would be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement. However, there must first be a prior allowance or disallowance of a claim. See 38 C.F.R. § 3.157(b) (2014). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). 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. 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. By way of background, following a May 2010 Board decision that granted service connection for a left eye condition, a May 2010 rating decision effectuated the Board decision and assigned an effective date of November 25, 2003. A November 2013 rating decision granted an earlier effective date of June 16, 1997, for the award of service connection for the Veteran's service-connected left eye condition. The Veteran separated from active service for the first time in May 1994. That same month, he filed a formal claim for service connection for facial twitching (possibly Bell's palsy), sores on the back of his head, sporadic stomach pain, and a decreased in sperm count. No reference was made to the Veteran's left eye. Thereafter, in a September 1994 rating decision, those claims were adjudicated. In October 1994, the Veteran filed a notice of disagreement with the September 1994 rating decision and, while he filed a new claim for service connection for a nervous condition, there is no indication that he intended to seek service connection for a left eye condition. There is no additional evidence of record indicating an intent to file a claim for service connection for a left eye disorder within one year of service discharge. Therefore, assignment of an effective date back to the day following his service discharge is not possible. In connection with the Veteran's appeal of the September 1994 rating decision, he testified before a Veterans Law Judge on June 16, 1997. During the hearing, he raised the issue of entitlement to service connection for a left eye disorder as secondary to his service-connected left facial paralysis. In a January 1998 decision, the Board referred the claim of entitlement to service connection for a left eye disorder to the AOJ for initial adjudication. Based on the foregoing, the Board finds that an effective date prior to June 16, 1997, is not warranted for the Veteran's service-connected left eye condition. The Board has considered whether any communication of record dated prior to June 16, 1997, could serve as an informal claim in order to entitle the Veteran to an earlier effective date. In this regard, any communication or action, indicating 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. 38 C.F.R. § 3.155 (2014). However, in this case, no document submitted prior to June 16, 1997, indicates intent to pursue a claim of entitlement to service connection for a left eye disorder. It is further noted that 38 C.F.R. § 3.157 is not applicable, as medical records cannot constitute an initial claim for service connection as no intent to file a claim was noted. See Criswell v. Nicholson, 20 Vet App 501 (2006); Brannon, supra (medical records cannot constitute an initial claim for service connection but rather there must be some intent by the claimant to apply for the benefit). The AOJ has granted the earliest effective date for the award of service connection for a left eye condition that the law allows. The exact date on which entitlement arose need not be ascertained in order to conclude that June 16, 1997, is the earliest possible effective date here. If entitlement arose prior to June 16, 1997, then the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). Moreover, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant. That is to say, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon, supra; Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). There is simply no legal entitlement to an earlier effective date for the award of service connection for a left eye condition. While the Veteran's left eye problems may have been present for many years prior to June 16, 1997, the regulations provide that the appropriate effective date is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Although sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to June 16, 1997, for the grant of service connection for a left eye condition. As there is no evidence of VA receipt of a claim, formal or informal, for service connection for a left eye condition prior to June 16, 1997, the award of service connection for such disability may be no earlier than that date claim. Therefore, the Veteran's claim for an earlier effective date for the award of service connection for a left eye condition must be denied. B. Effective Date for the Award of a 50 Percent Rating for Service-Connected PTSD and Dysthymic Disorder The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection or for an increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an award of service connection or for increased compensation "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400. This claim is subject to the more specific criteria under 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). "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. § 5110(b)(2). The implementing regulation summarizes the criteria for an effective date of an award of increased compensation as the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim." 38 C.F.R. § 3.400(o)(2). The Court has indicated that it is axiomatic that the facts that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521. Any communication or action, indicating an intent to apply for a VA benefit, from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). Also, with regard to the terms "application" or "claim," the Board notes that, once a formal claim for compensation has been allowed, 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, provided 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. See former 38 C.F.R. § 3.157(b)(1). Evidence received from a private physician or layperson will also be accepted as a claim for an increase or to reopen when the evidence is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits. The date of receipt of such evidence will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(2). In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the Court held that the applicable statutory and regulatory provisions, fairly construed, require the Board to look at all communications in the file that might be interpreted as applications or claims, formal or informal, for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which," within the one-year prior to the claim, the increase in disability was ascertainable. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(2), 3.155(a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In a June 1995 rating decision, the AOJ granted service connection for a nervous condition diagnosed as PTSD and dysthymic disorder, and assigned a 10 percent disability rating effective May 30, 1994, under Diagnostic Code 9405. Although notified of the decision and his appellate rights, he did not enter a notice of disagreement with that decision. Therefore, the June 1995 rating decision is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 3.104, 20.302, 20.1103. The Board has considered the applicability of 38 C.F.R. § 3.156(b), provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, no additional evidence was received prior to the expiration of the appeal period. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Following the final June 1995 rating decision, the Veteran's claim for increased rating was received during the June 16, 1997 Board hearing. In making such determination, the Board has considered whether any communication or treatment record dated prior to June 16, 1997, may be considered an informal claim; however, no communication prior to June 16, 1997 referenced his service-connected PTSD and dysthymic disorder. Accordingly, the date of the Veteran's increased rating claim is June 16, 1997. Thereafter, in an April 2003 rating decision, the AOJ, in essence, increased the Veteran's disability rating from 10 to 30 percent, changing the Diagnostic Code from 9405 to 9411, effective March 10, 2003. The RO characterized the award as a grant of service-connection for PTSD previously evaluated as dysthymia. The Veteran expressed disagreement with the assigned rating, and perfected his appeal to the Board. The Board notes in passing that although the April 2003 rating decision purported to award service connection for PTSD, service connection was already awarded for both PTSD and dysthymia by the prior June 1995 rating decision. Indeed, for purposes of rating the psychiatric disability, the RO first chose to code the disability under Diagnostic Code 9405 (dysthymia) in June 1995, and changed the code to 9411 (PTSD) in the April 2003 rating decision, upon awarding the increased rating to 30 percent. Notably, Diagnostic Code 9405 was removed from the rating schedule as of November 7, 1996. Following a May 2010 Board decision, the AOJ increased the Veteran's disability rating to 50 percent under Diagnostic Code 9411, also effective March 10, 2003. Thereafter, in September 2010, the Veteran disagreed with the assigned effective date, and argued that the 50 percent rating should be effective September 1994. As discussed above, the Veteran's raised a claim for an increased rating at the Board's June 16, 1997 hearing (and no earlier). As such, the key question at issue is whether the 50 percent rating currently in effect as of March 10, 2003 can be awarded at any time as far back as June 16, 1997. Under the rating criteria in effect as of November 7, 1996-and still in effect today-a 50 percent rating is warranted for a mental disorder that manifests 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, and difficulty in establishing and maintaining effective work and social relationships. During the June 1997 Board hearing, the Veteran stated that he had problems eating in public and that he did not socialize due, in part, to his emotional problems stemming from his Bell's palsy. The Veteran stated that his symptoms had increased, and that he withdrew from others. He also stated that a psychologist told him that his emotional problems stemming from his Bell's palsy had also had an effect on his marriage. In support of his claim, the Veteran submitted a number of statements in December 1998. In in own statement, he reiterated the psychological distress he felt in public places as a result of the limitations and symptoms associated with his Bell's palsy. He also stated that his emotional problems had an effect on his marriage, which ultimately resulted in a divorce. In another statement, the Veteran's girlfriend stated that the Veteran had become socially withdrawn, that he was preoccupied with physical ailments, and that he would lose his temper on occasions. Based on the evidence of record, the Board finds that a 50 percent rating is warranted under Diagnostic Code 9411, effective June 16, 1997, the date his claim for an increase rating was raised. This decision is based on the lay statements made by the Veteran during the June 1997 hearing, and the statement submitted in December 1998. In this regard, both he and his girlfriend are competent to report on factual matters of which they had firsthand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board further finds that the Veteran's statements are credible. Significantly, the Veteran's reported symptoms of social isolation, psychological distress, problems controlling his anger, and difficulty maintaining social relationships (i.e. his marriage), where similar to the symptoms reported during the March 2003 and November 2004 VA examination reports, which were the basis upon which the 50 percent rating was awarded. Given the evidence of record, the Board finds that the Veteran's psychiatric disability (PTSD and dysthymic disorder) is appropriately rated under Diagnostic Code 9411, and that this disability warrants a 50 percent disability rating effective the date of his increased rating claim, June 16, 1997. The Board has also reviewed the evidence of record within the one year period prior to the receipt of his claim on June 16, 1997, so as to determine the earliest date it is factually ascertainable that the Veteran's PTSD and dysthymic disorder increased in severity. The evidence of record, however, fails to demonstrate that it was factually ascertainable that the Veteran's disability increased in severity within one year from when he raised his claim. Therefore, based on the foregoing, the Board finds that, the June 1995 rating decision that granted service connection for a nervous condition diagnosed as PTSD and dysthymic disorder, and assigned a 10 percent disability rating effective May 30, 1994 is final. VA received the Veteran's claim for an increased rating on June 16, 1997, and the evidence of record supports a 50 percent rating under the General Rating Formula for Mental Disorders, effective the date of the claim for an increase. Thus, the assignment of an effective date of June 16, 1997, but no earlier, for the award of a 50 percent rating for the Veteran's service-connected psychiatric disability is granted. ORDER An effective date prior to June 16, 1997, for the award of service connection for a left eye condition is denied. An effective date of June 16, 1997, but not earlier, for the award of a 50 percent rating for service-connected PTSD and dysthymic disorder is granted, subject to law and regulations governing the effective date of an award of monetary compensation. REMAND In November 2013, the RO issued a rating decision that granted an earlier effective date for the award of service connection for a left eye condition, and assigned a noncompensable rating from June 16, 1997 to November 25, 2003. Thereafter, the Veteran filed a notice of disagreement in November 2013 with the initially assigned noncompensable rating; however, a statement of the case has not yet been issued. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. See 38 C.F.R. § 19.26 (2017). Thus, a remand for the issuance of a statement of the case on this issue is necessary. Manlincon, supra. However, this issue will be returned to the Board after the issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Provide the Veteran and his representative with a statement of the case concerning his claim for an initial compensable rating for service-connected left eye condition. Advise them of the time period in which to perfect the appeal. If, and only if, he submits a timely substantive appeal in response to the statement of the case should it be returned to the Board for further appellate consideration. The Veteran 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 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. §§ 5109B, 7112 (2014). ______________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs