Citation Nr: 1805553 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-17 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to the assignment of an effective date earlier than February 4, 2008 for the award of service connection for PTSD. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Bristow Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to February 1971. This matter is before the Board of Veteran's Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which awarded service connection for PTSD and assigned a 30 percent initial rating, effective February 4, 2008. The issue of entitlement to an initial rating in excess of 30 percent for service-connected PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran did not file a formal or informal service-connection claim for PTSD prior to February 4, 2008. CONCLUSION OF LAW The criteria for assignment of an effective date prior to February 4, 2008, for the award of service connection for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim decided herein, no notice or duty to assist deficiencies have been alleged by the Veteran or his representative. 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). The Veteran contends that he is entitled to an effective date prior to February 4, 2008 for the award of service connection for PTSD. Specifically, he asserts that since he was diagnosed with PTSD by VA practitioners in 2002, he should be awarded compensation for that time between 2002 and 2008. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2017). The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because this claim was initiated prior to that date, the former regulations apply. Under the former regulations, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such an 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) (2014). After reviewing the totality of the evidence, the Board finds that VA did not receive an application for compensation benefits for PTSD, formal or informal, prior to the claim submitted in February 2008. The Board has reviewed the claims file, including the VA treatment records, and there is simply no indication on the part of the Veteran of any intent to file a claim for service connection for PTSD prior to the initial February 2008 claim. While the Veteran filed a prior claim for diabetes in 2003, nothing in this claim can be construed as a claim for PSTD. Moreover, the Veteran and his representative have also not identified any such claims. While, under the provisions of former 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, the Court has held that this regulation only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). Merely seeking treatment does not establish a claim, to include an informal claim, for service connection. Thus, any records of VA treatment for the Veteran's PTSD, or other mental health symptoms, cannot constitute a claim for service connection. After reviewing the totality of the evidence, the Board finds that the RO did not receive an application for compensation benefits prior to the receipt of the Veteran's claim in February 2008. The Board recognizes that the Veteran had been suffering from PTSD prior to the February 2008 claim. However, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). In sum, the pertinent regulations state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on consideration of these regulations and the former regulations governing informal claims, the effective date has been appropriately assigned as the date his claim was received, February 4, 2008. While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, in this case the Board is precluded from assigning an effective date prior to February 4, 2008 for the grant of service connection PTSD. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to February 4, 2008 for the award of service connection for such disability. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER An effective date prior to February 4, 2008 for the award of service connection for PTSD is denied. REMAND The Board finds that the Veteran's claim for an increased rating for PTSD must be remanded in order to afford him an updated VA examination. In this regard, the record reflects that the Veteran was last afforded a VA mental health examination more than six years ago in October 2011. Since that time, the Veteran has noted an increase in the severity of his symptoms. Specifically, on his May 2014 VA Form 9, the Veteran reported that his anxiety had worsened to the point that he stayed at home most of the time. He also reported that when he did have to be around people, he experienced headaches, trouble with his speech and panic attacks. In light of these allegations of worsening symptoms, the Board finds that a remand is required in order to afford the Veteran an updated VA examination so as to determine his current level of impairment with regard to his PTSD. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Finally, updated VA treatment records dated from January 2014 to the present should be obtained for consideration in the Veteran's appeal. The Veteran should also be provided with an opportunity to identify and provide a release for any private treatment providers who have treated him for his PTSD. Accordingly, the case is REMANDED for the following action: 1. Obtain all VA treatment records dated from January 2014 to the present. All reasonable attempts should be made to obtain such records. 2. Contact the Veteran and allow him to identify, submit or authorize VA to obtain any private treatment records not already on file that he believes are pertinent to the appeal. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. After obtaining all outstanding records, the Veteran should be afforded a VA examination to determine the current nature and severity of his service-connected PTSD. The record must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the severity of all manifestations of the Veteran's PTSD. The examiner should provide a full description of the effects, to include all associated limitations, of the Veteran's PTSD on his daily activities and his ability to work. All opinions expressed must be accompanied by supporting rationale. 4. After completing the above, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded a reasonable period of time within which to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs