Citation Nr: 18154328 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-46 969 DATE: November 29, 2018 ORDER Entitlement to an effective date earlier than February 13, 2014, for the award of a 50 percent disability rating for service-connected posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a rating in excess of 50 percent for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In June 2009, the Veteran filed an original claim of service connection for PTSD. A September 2009 rating decision granted service connection for PTSD and assigned a 30 percent initial rating. The Veteran submitted a notice of disagreement (NOD) in July 2010. A statement of the case (SOC) was issued in August 2013, and the Veteran did not file a substantive appeal. 2. Following the September 2009 rating decision, the Veteran’s claim for an increased rating for his service-connected PTSD was received on February 13, 2014, and it was not factually ascertainable that an increase in disability took place within one year of that date. CONCLUSIONS OF LAW 1. A substantive appeal was not filed in response to the August 2013 SOC. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.302(b), 20.303, 20.305 (2018). 2. The criteria for an effective date earlier than February 13, 2014, for the assignment of a 50 percent rating for PTSD have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to September 1969. This matter is on appeal from a July 2014 rating decision. In his March 2018 Informal Hearing Presentation (IHP), the Veteran raised the issue of entitlement to a TDIU due to his service-connected disabilities, to include PTSD. When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered “part and parcel” of the claim for benefits for the underlying disability, as an attempt to obtain an appropriate disability rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In his March IHP, the Veteran indicated he was unable to obtain or maintain substantially gainful employment from January 2009 to May 2012 due to his service-connected disabilities. While the Veteran stated he was employed during his June 2016 VA examination, it is unclear whether he is working at the present time. As the record raises a question of whether the Veteran is unemployable due to his service-connected disabilities, TDIU is properly before the Board. Effective Date The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation. Otherwise, the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b) (2012); 38 C.F.R. § 3.400(b)(2) (2018). Entitlement to an effective date earlier than February 13, 2014, for the assignment of a 50 percent rating for PTSD The Veteran contends he is entitled to an effective date earlier than February 13, 2014, for the assignment of a 50 percent rating for PTSD. Specifically, he asserts that he was unable to submit a substantive appeal because he did not receive a copy of the August 2013 SOC mailed in response to his July 2010 NOD regarding the September 2009 rating decision which granted service connection for PTSD and assigned an initial disability rating of 30 percent. Under VA regulations, an appeal consists of a timely filed written NOD and, after a SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9, “Appeal to Board of Veterans’ Appeals,” or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the Agency of Original Jurisdiction (AOJ) mails the SOC to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C. § 7105; 38C.F.R. § 20.302(b). By way of background, the Veteran filed a claim for service connection for PTSD in June 2009. A September 2009 rating decision granted service connection for PTSD and assigned an initial rating of 30 percent effective June 2, 2009, the date of the Veteran’s original claim. In July 2010, the Veteran filed an NOD with the 30 percent initial rating assigned. In March 2013, the Veteran submitted a request for change of address form. In August 2013, the AOJ issued an SOC that continued to deny an initial rating in excess of 30 percent for the Veteran’s service-connected PTSD. Thereafter, in a February 2014 statement, the Veteran submitted a statement in support of an increased rating claim for PTSD, as well as supporting private treatment records. The Veteran was afforded a new VA examination in June 2014, and a July 2014 rating decision increased the evaluation of his service-connected PTSD to 50 percent with an effective date of February 13, 2014, the date his increased rating claim was received by VA. The Veteran filed an NOD in October 2014, contending the effective date for the 50 percent rating for his PTSD should be June 2, 2009, the date of his initial claim was received by VA. He asserts that while he filed a change of address form in March 2013, the AOJ sent the August 2013 SOC to his prior address, therefore he never received the SOC and could not file a substantive appeal. Upon review of the record, the Board finds that entitlement to an effective date earlier than February 13, 2014, for the assignment of 50 percent rating for the Veteran’s service-connected PTSD is not warranted. Review of the record reflects the August 2013 SOC was addressed to the Veteran’s old address, rather than the change of address submitted in March 2013. The old address, however, is crossed out on the March 2013 SOC, with a handwritten note to send the SOC to the Veteran’s new address indicated on his March 2013 change of address form. Additionally, a handwritten note at the bottom of the first page of the August 2013 SOC indicates the address was updated in VA’s system. Further, there is no evidence of record that indicates the August 2013 SOC was returned to the sending Regional Office (RO) or marked as undeliverable. The Board finds that the evidence of record does not support the Veteran’s allegation that he did not receive a copy of the August 2013 SOC. The United States Court of Appeals for Veterans Claims (Court) has held that “there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties.” Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). The presumption of regularity with regard to the regular mailing of notice attaches if VA mails notice to the last address of record. See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). The mere assertion of non-receipt by an appellant is not enough to establish the clear evidence needed to overcome the presumption of regularity in the mailing of the notification letters at issue in this case. Davis v. Principi, 17 Vet. App. 29, 37 (2003). Here, the record does not contain any evidence that would support the Veteran’s contentions that he did not receive the August 2013 SOC. His statements alone are insufficient to rebut the presumption of regularity in the administrative process and do not provide a route for an earlier effective date. Id. The remaining question, then, is whether there is any basis upon which to award an effective date earlier than February 13, 2014 for the award of a 50 percent rating for the Veteran’s service-connected PTSD. Under former 38 C.F.R. § 3.157(a) (which was in effect prior to March 24, 2015), a report of examination or hospitalization would be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement. However, there must first be a prior allowance or disallowance of a claim. See 38 C.F.R. § 3.157(b) (2014). Following the final September 2009 rating decision, the Veteran’s claim for an increased rating for PTSD was received on February 13, 2014. In making such determination, the Board has considered whether any communication dated prior to February 13, 2014 may be considered an informal claim; however, no document associated with the record following the August 2013 SOC to the February 13, 2014 claim indicates an intent to file a claim for an increased rating. Accordingly, the date of the Veteran’s increased rating claim is February 13, 2014. In the July 2014 rating decision on appeal, the AOJ granted a 50 percent disability rating for the Veteran’s service-connected PTSD effective February 13, 2014, the date of the Veteran’s increased rating claim. The Board has reviewed the evidence of record within the one-year period prior to the receipt of the Veteran’s claim on June 21, 2010, to determine whether it is factually ascertainable that the Veteran’s service-connected PTSD increased in severity during that time period to warrant an earlier effective date for the award within that year. The only relevant evidence of record dated during the one-year period prior to February 13, 2014 are the Veteran’s VA treatment records. While these VA treatment records note that the Veteran received treatment for his service-connected PTSD, the evidence reflects the Veteran’s speech and thought process was normal, that he appeared well-groomed, and that he denied suffering from delusions, hallucinations, and suicidal or homicidal ideations. While VA treatment records during the one-year period prior to February 13, 2014 mention the Veteran’s anxious mood, there is no indication in that the Veteran suffered from panic attacks more than once a week. As such, the Board finds that it was not factually ascertainable that the Veteran’s PTSD increased in severity, warranting an earlier effective date for the award of a 50 percent disability rating within a year prior to February 13, 2014 under 38 C.F.R. § 3.400(o)(2). As the preponderance of the evidence is against the claim for an earlier effective date, the Board finds that the claim of entitlement to an effective date earlier than February 13, 2014, for the award of a 50 percent rating for PTSD must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for PTSD is remanded. In his March 2018 IHP, the Veteran indicated that his PTSD symptoms had worsened since his last VA examination in June 2016. Therefore, to ensure that the record reflects the current severity of the Veteran’s psychiatric disability, a new examination is needed to properly evaluate his service-connected PTSD. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to a TDIU is remanded. In his March 2018 IHP, the Veteran indicated he was unable to work due to his service-connected disabilities from January 2009 to May 2012. While the Veteran indicated he was employed at the time of his June 2016 VA examination it is unclear whether the Veteran is currently employed. To date, the Veteran has not been provided with a formal TDIU application (VA Form 21-8940). As there was an inferred claim for entitlement to a TDIU raised by the Veteran in his March 2018 IHP, the Veteran should be provided notice of the elements necessary to substantiate a claim of entitlement to a TDIU. The matters are REMANDED for the following action: 1. With any necessary identification of sources and authorization by the Veteran, request all VA and private treatment records for the Veteran not already associated with the file. Copies of any outstanding VA and private treatment records should be added to the Veteran's electronic claims file. 2. Schedule the Veteran for a VA examination to determine the nature and current severity of his service-connected PTSD. The Veteran’s electronic claims file must be accessible for review by the VA examiner in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. The rationale for all opinions expressed should be provided. The examiner should address how the Veteran’s PTSD impacts his activities of daily living, including his ability to obtain and maintain employment. 3. Provide the Veteran with notice that is compliant with 38 U.S.C. § 5103(a) as to the issue of entitlement to a TDIU. 4. Take all necessary steps to develop a claim of entitlement to a TDIU, to include providing the Veteran with a VA Form 21-8940 and determining his current employment status. 5. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran’s claims, to include the claim of entitlement to a TDIU. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Houle, Associate Counsel