Citation Nr: 18159864 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-53 523 DATE: December 20, 2018 ORDER An effective date prior to October 26, 2015 for a 100 percent rating for service-connected PTSD is denied. REMANDED Service connection for sleep apnea, as secondary to PTSD, is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for TDIU benefits on October 26, 2015 and a supplemental claim for an increased rating for PTSD on November 2, 2015. 2. A factually ascertainable increase in the severity of the Veteran’s PTSD disability was not shown to have occurred with one year prior to October 26, 2015. CONCLUSION OF LAW The criteria for an effective date prior to October 26, 2015 for a 100 percent rating for service-connected PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from October 1966 to October 1968 in the United States Army. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in August 2014 and January 2016 by Department of Veterans Affairs (VA) Regional Offices (RO). 1. Entitlement to an effective date of prior to October 26, 2015 for a 100 percent rating for service-connected PTSD is denied. The Veteran asserts that he is entitled to an earlier effective date for his service-connected PTSD. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400. For claims for an increase in a service-connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(1)-(2). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claims must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claim for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the formal claim. 38 C.F.R. § 3.155. The Veteran filed claim for Total Disability based on Individual Unemployability (TDIU) on October 26, 2015. The Veteran’s representative then notified the VA that a claim for an increased rating for PTSD was unintentionally left off the claim for TDIU and filed a supplemental claim for an increased rating for PTSD on November 2, 2015. The VA considered the supplemental claim to have the earlier filing date of October 26, 2015, when the original claim was filed. The VA granted the Veteran an increased rating for his service-connected PTSD. The Veteran’s rating was increased to 100 percent with an effective date of October 26, 2015 in a January 2016 rating decision. The Veteran filed a Notice of Disagreement with regards to the effective date of the 100 percent rating in November 2016. After a review of the record, the Board finds that an earlier effective date for service connection of PTSD is not warranted. The Veteran claims that he is entitled to an effective date of May 30, 2014 based on § 3.156(b) due to the submission of the VA Form 21-8940 and Social Security earnings record. The Veteran contends that this is the appropriate date based on it being the date of claim. However, the claim filed on May 30, 2014 was a claim for service connection for sleep apnea – it does not mention a psychiatric disability, to include PTSD. The Board also notes that the January 2016 rating decision considered both pieces of evidence when assigning the effective date for TDIU. The claim contained no mention of or indication that the Veteran intended to file a claim for an increase in the PTSD rating. As such, there was no intent to file for an increased for his service-connected PTSD. In sum, the Board finds that the May 30, 2014 application was only for service connection for sleep apnea. The correct date of claim in this case, October 26, 2015, represents the date the VA received the claim for TDIU, and the supplemental claim for an increased rating for PTSD. In addition to the relevant date of claim, the Board must also determine the date that entitlement arose. In this case, the Veteran was provided a new VA examination in December 2015. This examination provided evidence of a worsening in the Veteran’s PTSD symptoms and supported an increase in rating to 100 percent. Based on the examination report, the VA granted an increased rating for PTSD from 50 percent to 100 percent. The Board finds that the date of this VA examination, indicating worsening symptoms, represents the date entitlement arose. The record contains no other evidence of worsening PTSD symptoms prior to the date of the VA examination. Accordingly, under 38 C.F.R. § 3.400, the effective date in this case should be the date of claim or the date entitlement arose, whichever was later. In this case, the date entitlement arose, December 12, 2015, represents the date of the VA examination which indicated the presence of PTSD symptoms that more closely approximate a rating of 100 percent. The date of claim, October 26, 2015, represents that date the VA received the Veteran’s claim for TDIU, with the later attached supplemental claim for an increased rating for PTSD. Under 38 C.F.R. § 3.400, the correct effective date would be December 12, 2015, the later date between the date of claim and the date entitlement arose. However, because the RO granted a more favorable effective date, October 26, 2015, the Board will not touch this favorable finding and assignment of effective date. The Veteran’s legal representative also raised an argument of entitlement based on extraschedular considerations. However, as noted above, the claim for increased compensation for PTSD/TDIU was not filed until at the earliest October 26, 2015 and entitlement did not arise prior to this date. REASONS FOR REMAND 1. Service connection for sleep apnea, as secondary to PTSD, is remanded. The Board finds that additional evidentiary development is necessary before a decision can be reached on the merits of the Veteran's remaining claim for service connection for sleep apnea, including as secondary to PTSD. Specifically, the Veteran must be afforded a VA examination to determine whether his claimed sleep apnea is related to his active service, including as secondary to his service connected PTSD. The Veteran has presented testimony that his sleep has been negatively impacted as a result of his service-connected PTSD symptoms. However, the record currently lacks sufficient medical evidence to verify the connection between the Veteran’s PTSD symptoms and his sleep apnea. The matter is REMANDED for the following actions: 1. Associate any previously unobtained ongoing relevant medical records with the Veteran's claims file. 2. Schedule for VA examination to determine etiology of the Veteran’s sleep apnea, as secondary to his service connected PTSD. The examiner should issue medical opinions as to the following: (a) Whether it is at least as likely as not (50 percent probability or higher) the sleep condition had its onset in service or is related to service. (b) Whether it is at least as likely as not (50 percent probability or higher) that the Veteran's sleep condition is caused by or aggravated by (i.e., permanently worsened beyond the natural progression) his service connected PTSD. (Continued on the next page)   A comprehensive rationale is to be provided for any opinion rendered. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Watkins, Law Clerk