Citation Nr: 18147053 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-03 880A DATE: November 5, 2018 ORDER Entitlement to an effective date prior to July 26, 2013, for the grant of 100 percent rating for posttraumatic stress disorder (PTSD) is denied   FINDINGS OF FACT Prior to July 26, 2013, an informal claim for increase was not raised by the VA medical records, and it is not factually ascertainable that the Veteran’s PTSD resulted in total occupational and social impairment to warrant an earlier effective date for the grant of a 100 percent disability rating. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to July 26, 2013, for the grant of 100 percent rating for PTSD have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 2001 to June 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. 1. Entitlement to an effective date prior to July 26, 2013 for the grant of 100 percent rating for posttraumatic stress disorder (PTSD) The Veteran seeks an earlier effective date for the award of a 100 percent rating for PTSD. A. Applicable Law In this regard, except as otherwise provided, the effective date of an evaluation and award of 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 later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. With respect to the date of claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under VA law. 38 U.S.C. §§ 501, 5101; 38 C.F.R. § 3.151. Effective prior to March 24, 2015, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (a) (2015); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155 (a). 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. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. Although this regulation is no longer extant, because it was in effect during the pendency of this claim, it is applicable to the present case. Also effective prior to March 2015, VA regulation provided, in relevant part, that a report of examination, treatment, or hospital admission by VA will be accepted as the date of receipt of claim for increased benefits when it pertains to a disability for which service connection has previously been established. 38 C.F.R. § 3.157. In order to qualify as an informal claim under § 3.157, the VA report in question must (1) identify a specific, particular examination and the date of such examination, and (2) must indicate that the disability has worsened since the last time it was evaluated. Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff’d 724 F.3d 1325 (Fed. Cir. 2013); Massie, 724 F.3d at 1328-29. Unlike other informal claims, there is no requirement that an intent to file a claim be shown under § 3.157. Further, the provisions of 38 C.F.R. § 3.400 (o), whereby a rating increase can be granted up to one year prior to the date of claim, also apply to claims submitted under § 3.157. Massie, 25 Vet. App. at 132. Although this regulation is no longer extant, because it was in effect during the pendency of this appeal, it is applicable to the present case. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Evaluation of mental disorders are based on the impact to occupational and social functioning. 38 C.F.R. 4.130, Diagnostic Codes 9201-9440. The Veteran’s PTSD has been evaluated as 100 percent disabling under the General Rating Formula for Mental Disorders. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. B. Discussion The questions for the Board concern whether there was an earlier pending claim for an increased rating, and, if so, whether a 100 percent disability picture was factually ascertainable at that time. The current effective date is July 26, 2013, which the date the Veteran filed a “formal claim for an increased evaluation.” In a February 2018 appellate brief, the Veteran’s private attorney argued that an earlier claim should be recognized because the Veteran’s condition worsened within one year prior to the claim as evidenced by a letter from the Veteran’s mother and a December 2010 VA treatment record. After careful consideration, the Board finds that an earlier effective date cannot be assigned because, although there may have been an earlier pending claim, a 100 percent disability picture was not factually ascertainable prior to July 26, 2013. In connection with his original claim of service connection, the Veteran underwent a VA examination in February 2009. The Veteran reported insomnia and difficulty sleeping. Mental status examination revealed anxious mood, intact attention, unremarkable thought processes, and average intelligence. Based on these findings, an April 2009 rating decision granted service connection for PTSD with secondary insomnia with an initial evaluation of 30 percent. The Veteran did not file a notice of disagreement with that rating decision. Within one year of the April 2009 rating decision, the Veteran continued to seek treatment at VA. These treatment records were not actually or constructive of record during that one-year period. The Veteran did not submit any statements or information during that period identifying a specific VA facility, that he received some type of treatment there, and that such treatment was current. Constructive receipt was therefore not triggered. See Turner v. Shulkin, 29 Vet. App. 207, 219 (2018). Accordingly, these VA treatment records cannot be considered new and material evidence under § 3.156(b). Likewise, these VA treatment records do not show that a 100 percent disability level was factually ascertainable and are, therefore, not consistent with an informal claim under § 3.157(b). In March 2014, the Veteran underwent a VA examination. The Veteran indicated that he lived with his wife and two sons, didn’t have any friends that he spent time with, and did not see his family very frequently. The Veteran indicated that he went to college from Fall 2009 until Winter 2013, but had some difficulty with concentration. The VA examiner noted depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideation, impaired impulse control, persistent delusions or hallucinations, neglect of personal appearance and hygiene, and disorientation to time or place. The March 2014 VA examination establishes the 100 percent disability level. However, the Board is unable to ascertain an earlier effective date for total occupational and social impairment prior to the currently established grant on July 26, 2013. For example, in July 2009, the Veteran met with his mental health treatment provider. The Veteran reported that his Aunt had just committed suicide, and that his father committed suicide a few years ago. Mental status examination revealed depressed mood, good insight and judgment, and logical and sequential thought processes. He denied any suicidal ideation. In October 2009, the Veteran met again with his mental health treatment provider. He reported that he was dealing with school fairly well and doing well in his classes, but that he was a bit spread out time wise. In December 2009, the Veteran met with his mental health treatment provider. He reported that he was still going to school and doing well in his classes. He denied suicidal ideation and substance abuse issues. In December 2010, the Veteran returned for medical treatment with his primary care provider. He reported that he hadn’t been seen in primary care or with mental health for over a year. He indicated he wanted to sleep more lately, wanted to isolate, and that “things have kind of been going downhill.” The Veteran reported that he was going to school, and that he lived with his girlfriend who was pregnant with their first child. An associated examination noted the Veteran was hyperverbal though pleasant. In February 2011, the Veteran met with his VA mental health treatment provider. He reported that he now had a significant other and new 2-month baby boy that was keeping him up at night. He indicated that he was studying nursing, was in the pre-requisites, and that this was stressful. Mental status examination showed agitated behavior, anxious mood, but normal, coherent thought processes, no unusual thought content, and good insight and judgment. In May 2011 the Veteran returned for mental health treatment. The Veteran reported that he was having problems with concentration and sleep. He indicated that he was going to school regularly and was working on taking nursing classes, but was thinking of taking paramedic classes instead. Mental status examination again showed agitated behavior, anxious mood, but normal thought processes, content, and good insight and judgment. In July 2011, treatment notes indicate the Veteran reported ongoing problems with concentration and memory. The Veteran indicated that he was taking 4 classes for the summer term and was having difficulty concentrating on his school work. Mental status exam showed agitated behavior, anxious mood, and otherwise normal thought processes, thought content, judgment, and insight. In January 2012, the Veteran reported having problems with his depression to a nurse practitioner. He indicated that “lately my energy has been going in the crappers again.” In February 2012, a telephone note indicates that the Veteran missed his mental health visit. VA records are then silent for mental health examinations, treatment, or symptoms from February 2012 through March 2014. Available VA medical records show the Veteran received immunization shots for school in June 2012 and September 2012. In July 2013, a telephone note indicates the Veteran called asking why his prescriptions had expired. Review of the chart showed that the prescription had expired because it was over 1 year old. In December 2013, the Veteran called asking to set up an appointment for mental health treatment, indicating he hadn’t seen anyone since his prior treatment provider left. These intervening VA medical records do not indicate a 100 percent disability level because they do not indicate a total social and occupational disability or symptoms characteristic thereof. From 2009 to 2011 the Veteran maintained a relationship with his significant other and/or girlfriend, and was taking college classes for a nursing program at the time. This does not suggest total occupational and social impairment. Moreover, the March 2014 VA examination itself does not more precisely when the symptoms at the 100 percent level emerged. At best, it indicates that he continued attending college “until Winter 2013,” which militates against a finding that the 100 percent disability level had emerged by that time. For example, the VA examiner cited symptoms such as difficulty in adapting to stressful circumstances, including work or a worklike setting; impairment of short-and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; and disorientation to time or place. It seems unlikely that the Veteran could have continued attending college courses if with such a disability picture. College courses are not a work setting, but are a worklike setting to the extent one must regularly and punctually attend lectures; consistently complete tasks, such as homework and studying for tests; and interact with others, including professors. Thus, the symptoms cited would by the VA examiner would likely have prevented the attendance at college. The Board acknowledges the statement by the Veteran’s mother that her son’s condition has gotten progressively worse since he got out of the military in 2008. Her statement does not establish a factually ascertainable 100 percent disability rating. In particular, the Board notes her statement lacks detail needed to assign a disability rating as it does not indicate what symptoms she felt were worsening. In short, the exact onset of the Veteran’s 100 percent disability level cannot be determined with any certainty based upon the evidence in this case. It appears that the 100 percent disability level emerged at some point in time proximate to his last college courses. However, the earliest that that it can be factually ascertained that he met the criteria for a 100 percent rating is the date he was examined by VA in March 2014. Accordingly, the Board finds that it is not factually ascertainable 100 percent disability occurred prior to July 26, 2013, the current effective date. Pursuant to VA law and regulations, therefore, the proper effective date for the grant of the increased rating is July 26, 2013. 38 C.F.R. § 3.400(o). This is the effective date that is currently assigned. Accordingly, entitlement to an effective date prior to July 26, 2013, for the grant of a 100 percent rating for PTSD is not warranted. As a final matter, the Veteran’s representative asked in the February 2018 appellate brief that the Board consider assigning staged ratings of 50 or 70 percent should a 100 percent rating not be factually ascertainable. At this point, the assignment of staged ratings is outside the Board’s jurisdictional authority in this appeal. The sole question is whether the 100 percent disability level was factually ascertainable. The Board is without jurisdiction to determine whether a 50 or 70 percent disability rating should be assigned. See 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511, 520 (1997). C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lauritzen, Associate Counsel