Citation Nr: 18148296 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-35 281 DATE: November 8, 2018 ORDER Entitlement to an effective date prior to January 9, 2014, for the award of service connection for tinnitus is denied. REMANDED Entitlement to an effective date prior to September 27, 2013, for a 70 percent evaluation for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an evaluation in excess of 70 percent for PTSD is remanded. For the period prior to June 1, 2016, entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT On January 3, 2014, the Veteran filed a claim for service connection for tinnitus; there was no communication received prior to that date indicating an intent to file a claim. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of January 3, 2014, for the award of service connection for tinnitus have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (prior to March 24, 2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from February 2005 to July 2006, and from September 2010 to October 2011. He was awarded the Combat Infantryman’s Badge and served in Southwest Asia. These matters come before the Board of Veteran’s Appeals (Board) on appeal from a July 2014 rating decision by the Regional Office (RO). A December 2017 rating decision granted entitlement to a TDIU, effective June 1, 2016. Because the Veteran filed an increased rating claim for his service-connected PTSD in September 2013, the issue of entitlement to a TDIU prior to June 1, 2016, remains on appeal as intertwined with the PTSD rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Entitlement to an effective date prior to January 9, 2014, for the award of service connection for tinnitus A July 2014 rating decision granted service connection for tinnitus, effective January 9, 2014. The Veteran seeks an earlier effective date. In January 2014, the Veteran filed an informal claim of entitlement to service connection for tinnitus by facsimile. The document shows it was stamped as received on January 9, 2014. However, the document shows a facsimile transmission date of January 3, 2014 on the top of the document. It is unclear whether this facsimile transmission date was recorded by the VA facsimile machine upon receipt, or whether this date was added by the sender at the time of transmission. There is no communication in the claims file prior to this January 2014 facsimile indicating any intention to file a claim. The July 2014 rating decision awarded service connection for tinnitus and assigned an effective date of January 9, 2014 – the stamped-received date. The effective date of an award of service connection based on an original claim “will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” 38 C.F.R. § 3.400 (2017); see also 38 U.S.C. § 5110(a) (2012). As shown above, the Veteran filed an informal claim for service connection for tinnitus in January 2014. No communication was received prior to January 2014 indicating any intent to file a claim. In this particular case, resolving all doubt in the Veteran’s favor, the Board finds that the correct filing date of the claim was January 3, 2014, the facsimile transmission date reflected on the top of the document (rather than the stamped-received date of January 9, 2014). The Board also acknowledges that the Veteran, as a lay person, is competent to have reported experiencing tinnitus at that time. Therefore, the Board concludes that entitlement to an earlier effective date of January 3, 2014 is warranted. REASONS FOR REMAND 1. Entitlement to an effective date prior to September 27, 2013 for a 70 percent rating for PTSD is remanded. 2. Entitlement to an evaluation in excess of 70 percent for PTSD is remanded. 3. For the period prior to June 1, 2016, entitlement to a TDIU is remanded. The Veteran’s service-connected PTSD is currently assigned a 70 percent rating, effective September 27, 2013. The Veteran seeks an earlier effective date for the 70 percent rating. He also seeks an increased rating, and entitlement to a TDIU for the period prior to June 1, 2016. After the issuance of the July 2014 Statement of the Case (SOC), but prior to certification and transfer of the case to the Board, several additional VA treatment records were added to the claims file dated from July 2014 to September 2016, which include records of mental health treatment. Therefore, regrettably, the PTSD rating claim should be remanded to the agency of original jurisdiction (AOJ) for review of these new records and readjudication. See 38 C.F.R. § 19.37 (2017). Also, on remand, the AOJ should review several more records recently added to the claims file, including VA treatment records dated through December 2017, and Social Security Administration (SSA) records (including October 2014 statements by the Veteran and his mother, and November 2014 and February 2015 assessments). See SSA records, received October 10, 2017 at p.12, 20, 46, and 54 of 148, and received October 13, 2017 at p.12 of 14. The most recent July 2014 VA examination (PTSD) shows the Veteran reported he was still working at a car dealership ([redacted]), and that he planned to re-enroll at Delta College to complete a degree in history (and that he held three associate’s degrees). However, recent correspondence from [redacted] shows the Veteran was terminated just 11 days after his July 2014 VA examination for getting into a car accident. See Form 21-4192, September 2017. Also, a recent letter from Delta College shows the Veteran was taking courses there until 2015 (it does not show whether he completed a degree). See Form 21-4192, October 2017. In light of these changes in the Veteran’s circumstances since the last VA examination in July 2014 (PTSD), the Board finds that the Veteran should be afforded a new VA examination to address the current severity of his PTSD and to address the effect of his PTSD on his occupational functioning. Regarding the TDIU claim, an October 2017 response from Delta College shows the college reported that the Veteran was last enrolled in the college in 2015, and was not presently employed there. See “Form 21-4192,” October 2017. However, the Veteran had reported on his June 2017 Form 21-8940 that he worked at Delta College for 25 hours per week from February 2013 to July 2013. Therefore, the TDIU claim should be remanded so that the AOJ may request a completed Form 21-4192 from Delta College specifically regarding the Veteran’s reported employment from February 2013 to July 2013 and at any other times prior to June 1, 2016. Because the PTSD rating claim is being remanded for further development, the Board defers decision on the intertwined claim for an earlier effective date for the 70 percent rating for PTSD. The matters are REMANDED for the following action: 1. Send a follow-up request to Delta College to complete a Form 21-4192 regarding the Veteran’s reported employment there from February 2013 to July 2013. 2. Schedule a new VA examination to address the current severity of the Veteran’s service-connected PTSD disability. The claims folder should be made available to the examiner and pertinent documents therein should be reviewed by the examiner. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. A complete rationale for any opinions expressed should be provided. (Continued on the next page)   The examiner should also address the effect of the Veteran’s PTSD on his occupational functioning and activities of daily living. 3. Then, readjudicate the Veteran’s claims. If any claim remains denied, the Veteran should be provided a Supplemental Statement of the Case (SSOC) – please ensure it includes a review of all new evidence received since the July 2014 SOC. After the Veteran and his representative have been given the applicable time to submit additional argument, the claim(s) should be returned to the Board for further review. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Juliano, Counsel