Citation Nr: 18150579 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-37 682 DATE: November 15, 2018 ORDER An effective date of December 13, 2009 for the award of a 70 percent rating for service-connected posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT Resolving doubt in the Veteran’s favor, the criteria for a 70 percent evaluation for PTSD were met on December 13, 2009. CONCLUSION OF LAW The criteria for entitlement to an effective date of December 13, 2009 for the award of a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from July 1986 through February 1998 and from May 2007 through January 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue on appeal for the issuance of a statement of the case (SOC). The RO issued a SOC in June 2016. Therefore, the Board finds the directives having been substantially complied with and the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an effective date earlier than December 13, 2010 for the award of a 70 percent rating for PTSD. Unless otherwise specified, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a), (b)(3); 38 C.F.R. § 3.400. The effective date is the date of receipt of claim or the date entitlement arose, whichever is later. Under the law prior to the amendment, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2011) (amended 2015). An informal claim was any communication or action indicating an intent to apply for one or more benefits that identifies the benefit sought. 38 C.F.R. § 3.155(a) (2011) (repealed 2015). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims—formal and informal—for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Upon receipt of an informal claim for benefits, if a formal claim for benefits had not been filed, VA was required to provide the Veteran with a formal claim form for the Veteran to complete and return. 38 C.F.R. § 3.155(a) (2011). If a formal claim for benefits was then filed within one year of the date the formal claim form was sent to the Veteran, the formal claim was considered to have been filed as of the date of receipt of the informal claim. Id. The Veteran submitted a claim for service connection for PTSD in December 2008. In a June 2009 rating decision, the RO granted the claim and assigned a 10 percent rating for PTSD effective January 15, 2009, the date following the Veteran’s separation from active service. The Veteran did not appeal this decision and it became final. The notification letter advising the Veteran of the June 2009 rating decision was dated June 1, 2009. The Veteran therefore had until June 1, 2010 to file a notice of disagreement with the rating decision. The Veteran filed a claim for an increased rating of his service-connected PTSD in December 2010. In an April 2011 rating decision, the RO assigned a 30 percent rating for PTSD effective December 13, 2010, the date the RO received the Veteran’s claim. The Veteran filed a notice of disagreement (NOD) in August 2011 requesting an increased rating. In a December 2013 rating decision, the RO assigned a 70 percent rating for PTSD effective December 13, 2010 – the date his claim for an increased evaluation was received. The Veteran argues he is entitled to an effective date retroactive to the date it is factually ascertainable that the increase in symptomatology had occurred. (Continued on the next page)   The Board will grant the Veteran the benefit of the doubt as to the factual ascertainability of the increased severity and assign an effective date of December 13, 2009 for the 70 percent rating. 38 U.S.C. § 5110(b)(3). Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. McLendon, Associate Counsel