Citation Nr: 18150087 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 14-23 167 DATE: November 14, 2018 ORDER An effective date prior to January 31, 2013 for assignment of a 50 percent rating for post-traumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. A final March 2011 rating decision granted service connection for PTSD and assigned a noncompensable disability rating effective May 22, 2010. 2. The Department of Veterans Affairs (VA) received the Veteran’s claim for increased rating for PTSD on February 19, 2013. 3. In an April 2013 rating decision, the VA Regional Office (RO) granted an increased disability rating of 50 percent effective February 19, 2013. The Veteran disagreed with the effective date of the award of the increased rating. 4. In a May 2014 rating decision, the RO granted an earlier effective date of January 31, 2013 for the assignment of the 50 percent rating. 5. There was no formal or informal claim for increased rating for PTSD prior to the February 19, 2013 claim. 6. An increase in the symptomatology of the Veteran’s PTSD became factually ascertainable on January 31, 2013, but no earlier during the one-year period prior to her February 19, 2013 increased rating claim. CONCLUSION OF LAW The criteria for an effective date earlier than January 31, 2013 for the assignment of a 50 percent rating for PTSD have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 2006 to May 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an May 2014 rating decision of the VA RO in Columbia, South Carolina that granted an increased rating of 50 percent for PTSD effective January 31, 2013. The Veteran’s Contention The Veteran contends that she was diagnosed with PTSD upon separation from service and that she should be compensated from that date. The Veteran’s PTSD is currently rated 0 percent disabling from the day after discharge, May 22, 2010, to January 31, 2013. Entitlement to an earlier effective date for an increased rating for PTSD By way of history, the Veteran filed an original claim for service connection for disabilities that included PTSD in February 2010, prior to her discharge from service. In a March 2011 rating decision, the RO granted service connection for PTSD and assigned a noncompensable rating effective May 22, 2010, the day after the Veteran’s discharge from service. After being provided with notice of the March 2011 rating decision, the Veteran did not initiate an appeal of the decision or submit any new and material evidence with respect to the effective date within the applicable one-year appeal period. 38 C.F.R. § 2.156(b). Accordingly, the March 2011 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.202, 20.1103; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-53 (2010). Following the March 2011 rating decision, the Veteran filed a claim for an increased rating for PTSD that was received by VA on February 19, 2013. In an April 2013 rating decision, the RO granted a 50 percent disability rating for the Veteran’s PTSD, effective February 19, 2013, the date of receipt of the Veteran’s increased rating claim. In a May 2014 rating decision, the RO granted an earlier effective date of January 31, 2013, the date the Veteran commenced mental health treatment for her PTSD. This appeal of the effective date followed. The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of the award “shall not be earlier than the date of receipt of the application thereof.” 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(2). An exception to that result regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim of entitlement to increased compensation. The effective date of increased compensation will be the earliest date on which it is factually ascertainable that an increase in disability had occurred, provided a claim for increase is received within 1 year from such date; otherwise, the effective date will be the date of VA receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)(b)(3); 38 C.F.R. § 3.400(o); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or her representative, may be considered an informal claim. Such informal claim must identify the benefit sought. No set form was required, only communication that indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. See Rodriguez v. West, 189 F.3d 1351 (1999). The Veteran does not contend, and the record does not reflect, that she filed a formal or informal increased rating claim after the March 2011 rating decision but prior to the claim received February 19, 2013. Accordingly, as the March 2011 rating decision is final, the earliest effective date assignable in this case would be one year prior to the Veteran’s February 19, 2013 claim. The relevant issue before the Board is whether an increase of PTSD was factually ascertainable during that period. The record reflects that the Veteran sought treatment for her PTSD on January 31, 2013, the effective date granted by the May 2014 rating decision. The medical evidence of record during the one-year period preceding February 19, 2013 does not document any other complaints, treatment or diagnosis of PTSD so as to enable an assessment of the degree of severity of the disability. Although the Veteran relies on the October 2010 VA examination and her mother’s letter describing her condition in 2010, those materials describe symptoms that occurred more than one year prior to February 19, 2013, and were considered at the time of the initial grant of service connection. Where an increase occurs more than one year prior to the claim, the increase is effective the date of claim. 38 C.F.R. § 3.400(o)(2). In the absence of any other evidence consistent with 38 U.S.C. § 5110(b)(2) showing an increase in disability within one year of February 19, 2013, the Veteran is not entitled to an effective date prior to January 31, 2013. Accordingly, the claim for an earlier effective date is denied. The Board has considered the applicability of the benefit of the doubt doctrine in reaching these conclusions. Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Snyder, Associate Counsel