Citation Nr: 18159450 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-63 480 DATE: December 19, 2018 ORDER Entitlement to an earlier effective date prior to August 30, 2011, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an initial disability rating in excess of 70 percent for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The earliest document in the claims file that may be accepted as a claim for entitlement to service connection for PTSD is a Statement in Support of Claim (VA Form 21-4138) received from the Veteran on August 30, 2011. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to August 30, 2011, for the award of service connection for PTSD have not been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to February 1972. The Veteran has raised the issue of entitlement to a TDIU as part of his claim for an increased rating for his PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issues before the Board are as noted above. Entitlement to an earlier effective date prior to August 30, 2011, for the award of service connection for PTSD The Veteran seeks an earlier effective date for the award of service connection for PTSD. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date for service connection of the Veteran’s claim is not warranted. Regulations defining a “claim” were revised effective March 24, 2015, and apply only to claims and appeals filed after that date. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. The applicable regulations for the instant case are those in effect prior to the revision. Generally, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. 5110 (a); 38 C.F.R. 3.400. If a claim for disability compensation, i.e., service connection, 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)(i). A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The term “claim” or “application” means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. 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. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. The Board finds the Veteran is already in receipt of the earliest possible effective date for his PTSD as the August 30, 2011, effective date assigned is the date the Veteran’s claim for benefits was received. A thorough review of the claims file shows no written communication by either the Veteran or his representative evidencing any intent to seek compensation disability benefits for his now service-connected PTSD. The claims file does contain VA medical records documenting the Veteran’s PTSD prior to August 30, 2011. However, the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377 (1999). Similarly, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. Crawford v. Brown, 5 Vet. App. 33 (1995). Therefore, the presence of any treatment records dated before August 30, 2011, cannot serve as the basis for an earlier effective date for the award of service connection. As there is no claim of service connection prior to August 30, 2011, the preponderance of the evidence is against the claim for entitlement to an earlier effective date. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 70 percent for PTSD is remanded. The Veteran was last afforded a VA examination to evaluate the severity of his PTSD in March 2014. Since that time, he has told VA medical providers that the symptoms of his disability have worsened. Notably, a December 2014 VA treatment record noted the Veteran’s report that his depression was getting worse and that he often felt like there was the presence of someone in the house. The VA examiner also noted what appears to be the Veteran’s reports of experiencing a “black vague, cloud like figure.” A January 2015 VA mental health note also documented the Veteran’s reports that his suicidal thoughts have increased. Thus, a new VA examination on this issue is necessary 2. Entitlement to a TDIU is remanded. The Veteran reported at his March 2014 VA examination that he worked as a mechanic, had his own business, and then worked in public works for 12 years. He stated that he retired because he was having difficulty managing anger on the job. As such, he has reasonably raised the issue of entitlement to a TDIU. On remand, he should be asked to complete a VA Form 21-8940 and provide related employment details. Since the claims file is being returned it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records regarding the Veteran dated from April 2017 to the present. Provide the Veteran a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to obtain relevant employment information. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD alone. 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including TDIU. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jack S. Komperda, Counsel