Citation Nr: 18139909 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 18-11 174A DATE: October 1, 2018 ORDER An effective date prior to August 20, 2017, for the award of a 100 percent schedular rating for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT 1. The Veteran’s claim of entitlement to an increased rating for PTSD was received by VA on July 13, 2017. 2. The service connected PTSD was initially shown to be productive of symptomatology most closely approximating the criteria for a 100 percent rating at the September 5, 2017, psychiatric examination conducted for the Department of Veterans Affairs (VA). CONCLUSION OF LAW The criteria for an effective date prior to August 20, 2017, for the award of a 100 percent schedular rating for the service connected PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from March 1983 to March 1986. The Veteran asserts that the award of a 100 percent schedular rating for the service connected PTSD should be effectuated as of 1985 as that is the year when she initially manifested the service connected psychiatric disability. Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of application therefor. 38 U.S.C. § 5110 (a). An award of increased compensation will be generally effective as of the date of claim or the date entitlement arose, whichever is later. An increase in disability compensation shall be effective on the earliest date as of which it is factually ascertainable that an increase in disability had occurred if an application is received within one year from such date. Otherwise, the effective date shall be the date of receipt of the Veteran’s claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). Disability rating are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. A 70 percent rating for PTSD requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 an inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. Where there is a question as to which of two rating shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In April 2014, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD; assigned a 70 percent rating for that disability; granted a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU); and effectuated the awards as of January 18, 2017. The Veteran was informed in writing of the awards in April 2014. She did not submit a notice of disagreement with the rating decision and the decision became final. In a January 2017 written statement, the Veteran advanced that she was “very ill in 1985 in the Army” and requested that “you reopen my file and review it so you can pay me from 1985 to 2007.” A July 2017 VA notice to the Veteran states “thank you for submitting an application for VA benefits which we received July 13, 2017.” The Board of Veterans’ Appeals (Board) notes that while the cited July 13, 2017, claim is not of record, it may be reasonably presumed to have been a claim for an increased rating. In August 2017, the Veteran submitted an Application for Disability Compensation and Related Compensation Benefits (VA Form 21 526EZ) which was received by VA on August 20, 2017. The report of a September 5, 2017, psychiatric examination conducted for VA states that the Veteran was diagnosed with PTSD and a schizoaffective disorder. On mental status examination, the Veteran was observed to be disheveled, unkempt, alert, and oriented times three; to exhibit a depressed mood, a flat affect and tangential thought processes; and to deny any suicidal ideations. The examiner determined that the service connected PTSD was productive of “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” In September 2017, the AOJ increased the rating for the Veteran’s PTSD from 70 percent to 100 percent, effective September 5, 2017. In February 2018, the AOJ determined that August 20, 2017, the date of receipt of the Veteran’s August 2017 Application for Disability Compensation and Related Compensation Benefits (VA Form 21 526EZ), was the appropriate effective date for the award of a 100 percent schedular rating for the service connected PTSD. The Board finds that the Veteran’s claim for an increased rating for PTSD was received on July 13, 2017. Therefore, it is necessary to determine whether it was factually ascertainable that an increase in the service connected psychiatric disability had occurred in the year prior to the receipt of the Veteran’s July 13, 2017, claim for an increased rating. VA clinical documentation dated between August 2016 and May 2017 shows that the Veteran’s diagnosed PTSD and schizoaffective disorder were found to be stable. The Veteran reported that she was feeling stress about issues with her new car and her sons. On repeated mental status examinations, the Veteran was observed to be appropriately and neatly attired, alert, and oriented times four and to exhibit a depressed, stressed, and/or “OK” mood, a worried and/or euthymic affect; linear, logical and goal-directed, connected thought processes; and no delusions, auditory or visual hallucinations, or suicidal or homicidal ideations. The Veteran has not advanced any specific contentions as to when the service connected psychiatric disability warranted assignment of a 100 percent schedular rating. While she exhibited significant psychiatric impairment prior to the September 5, 2017 psychiatric examination, the Board observes that there was a profound increase in her disability picture reflected in the examination report including being disheveled and unkempt and exhibiting deficiencies in most areas including family relations, judgment, thinking and mood. Therefore, the Board finds that it was first factually ascertainable at the September 5, 2017, psychiatric examination that the service connected disability most closely approximate the criteria for a 100 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran’s claim for an increased rating for the service connected PTSD was received by VA on July 13, 2017. It was first factually ascertainable that the service connected psychiatric disability most closely approximated the criteria for a 100 percent rating at the September 5, 2017, psychiatric examination. Therefore, the Board concludes that the appropriate effective date for the award of a 100 percent rating for PTSD is September 5, 2017. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). Although the AOJ an earlier date before September 5, 2017 (August 20, 2017), the Board will not disturb that finding. Therefore, an effective date prior to August 20, 2017, for such an award is not warranted. The Board notes that the Veteran advanced contentions in her January 2017 written statement which may be reasonably construed as seeking an effective date prior to January 18, 2007, for the award of service connection for PTSD. The United States Court of Appeals for Veterans Claims (Court) has held that there is no such free standing claim as a “claim for an earlier effective date.” The Court clarified that a claimant could however overcome the finality of a prior decision in an attempt to gain an earlier effective date by either requesting a revision of the decision based on clear and unmistakable error (CUE) or a claim to reopen based upon new and material evidence. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). In April 2014, the AOJ granted service connection for PTSD. The Veteran did not submit a timely notice of disagreement with the effective date assigned for the award of service connection for PTSD and that decision became final. As there may be no such claim as a free-standing claim for an earlier effective date for the award of service connection and the Veteran’s written statement may not be reasonably considered to be a request for revision of a decision based on CUE, the Board finds that no further action need be taken on the Veteran’s request for an earlier effective date for the award of service connection for PTSD. J. CONNOLLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel