Citation Nr: 18160109 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 16-28 066 DATE: December 21, 2018 ORDER Entitlement to an effective date prior to June 18, 2014, for the award of a 100 percent rating for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to June 18, 2014, for the award of a 10 percent rating for lumbar spine strain with intervertebral disc syndrome is denied. FINDINGS OF FACT 1. A claim for an increased rating for PTSD and a lumbar spine strain was received on June 18, 2014. There is no evidence of an earlier, unadjudicated claim. 2. There was not factually ascertainable evidence showing the Veteran was totally impaired due to PTSD in the one-year period prior to June 18, 2014. 3. There was not factually ascertainable evidence showing the Veteran’s lumbar spine strain with intervertebral disc syndrome met the criteria for a 10 percent rating in the one-year period prior to June 18, 2014. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 18, 2014, for the award of a 100 percent rating for PTSD have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400(o), 4.130, Diagnostic Code 9411. 2. The criteria for an effective date prior to June 18, 2014, for lumbar spine strain with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5101, 5110; 38 C.F.R. §§ 3.400(o), 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2004 to January 2007. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2015 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which increased the evaluations of the Veteran’s service-connected PTSD and lumbar spine sprain with intervertebral disc syndrome effective June 18, 2014. In October 2018, a request for waiver of AOJ evidence was incorrectly sent to the Veteran. The Board notes that any evidence submitted since the April 2016 statement of the case was duplicative and/or irrelevant to the issues being decided herein. Accordingly, no waiver or supplemental statement of the case is necessary concerning the issues decided herein. Effective Date The Veteran seeks earlier effective dates for awards of increased ratings for her service-connected disabilities. The general rule is that the effective date of such an award “shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o)(1). Date of receipt means the date on which VA received a claim, information, or evidence. 38 C.F.R. § 3.1 (r). An exception to that rule applies under circumstances where evidence demonstrates a factually ascertainable increase in disability during the one-year period preceding the date of receipt of a claim for increased compensation. 38 U.S.C. § 5110 (3). In that situation, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. Id.; 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Generally, in all other cases, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (o)(1); VAOPGCPREC 12-98, 63 Fed. Reg. 56,703 (Oct. 22, 1998). Therefore, three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). Harper, 10 Vet. App. at 126. The Board acknowledges that effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 38 C.F.R. § 20.201; 79 Fed. Reg. 57660, 57696 (Sept. 25, 2014). Prior to March 24, 2015, however, VA recognized formal and informal claims. As the Veteran’s claims at issue were submitted prior to the effective date of the amendment, the prior law and regulations governing claims will be applied in this case. For VA compensation purposes, a “claim” is 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). An informal claim is “[a]ny communication or action indicating an intent to apply for one or more benefits.” It must “identify the benefit sought.” 38 C.F.R. § 3.155 (a). Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). When determining the effective date of an award of compensation benefits, the Board is required to review all communications in the file that could be interpreted as a formal or informal claim for benefits. See Lalonde v. West, 12 Vet. App. 377, 380-81 (1999). Generally, VA must develop all issues raised upon a liberal and sympathetic reading of a claim. See Ingram v. Nicholson, 21 Vet. App. 232, 256 (2007). 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 claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). PTSD The Veteran seeks an effective date prior to June 18, 2014, for the award of a 100 percent rating for her service-connected PTSD. She contends an effective date of November 17, 2012, is warranted. In her notice of disagreement (NOD), she essentially asserted she filed a claim for increased rating in November 2012. In her VA Form 9, she asserted that the same evidence from 2007, when she initially filed her service connection claim, was used to grant her total rating. The Veteran’s PTSD is currently rated as 100 percent from June 18, 2014, pursuant to Diagnostic Code 9411. Under DC 9411, a rating of 100 percent is warranted when the disorder results in total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130. The Veteran originally filed a claim for entitlement to service connection for PTSD in March 2007. In an October 2007 rating decision, the RO granted service connection with a 30 percent disability rating, effective January 6, 2007, the day following discharge from service. The Veteran submitted additional evidence and filed a motion for reconsideration in April 2008. In a December 2008 rating decision, the RO considered all of the evidence submitted, and continued the 30 percent rating. The Veteran was notified of the decision, and of her appellate rights, in a letter dated December 2, 2008. She did not initiate an appeal with an NOD, nor was additional evidence received into the record within one year. Thus, the December 2008 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.302, 20.1103; see also Buie v. Shinseki 24 Vet. App. 242 (2010). On June 18, 2014, the RO received a VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Individual Unemployability) from the Veteran. She indicated that she last worked in sales and that her PTSD prevents her from securing or following any substantially gainful occupation. In a February 2015 rating decision, the RO increased the rating to 100 percent, effective June 18, 2014. The Veteran and her representative have asserted that her claim was originally filed in November 2012 or, alternatively, in December 2012. The Board has reviewed the record and finds that there is no evidence of any earlier, pending formal or informal claim for an increased rating for the service-connected PTSD between the final December 2008 rating decision and the Veteran’s claim that was received in June 2014. In November 2012, the Veteran submitted a VA 21-686C (Declaration of Status of Dependents) and information detailing a change of address and contact information. In December 2012, the Veteran again submitted a VA 21-686C. There is nothing on the face of either VA 21-686C or their accompanying documents that could have put VA on notice that the Veteran was seeking an increased rating for her service-connected PTSD. As such, the Board finds that the Veteran’s filings seeking to add dependents cannot reasonably be construed as an informal claim for increased rating for PTSD. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The Board also finds that the record does not contain factually ascertainable evidence demonstrating that an increased rating for the Veteran’s service-connected PTSD was warranted during the year prior to June 18, 2014. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The Board has reviewed the medical records within the year preceding the June 2014 claim. While they show significant impairment from PTSD symptoms, they do not tend to show that the Veteran was totally impaired from functioning in an occupational and social environment. For instance, examinations show that she was alert and oriented to person, place and time. She was not found to exhibit persistent hallucinations or delusions. She was not believed to be a persistent danger to herself in relation to her intermittent thoughts of suicide. She was also shown to have relationships with some family members. The Board acknowledges that there was some evidence of occupational impairment submitted in 2007 and 2008, many years prior to the claim in June 2014. However, the earliest date on which a claim for increased rating can be granted is either the date the entitlement arose, or the date the claim was received, whichever is later in time. 38 C.F.R. § 3.400 (o). The United States Court of Appeals for the Federal Circuit has explained that the provisions of 38 U.S.C. § 5110 governing the effective date to be assigned for an increased rating require “that a veteran’s claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of the claim,” See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining the legislative intent to provide veterans with a one-year grace period for filing their claims). Thus, when it is established that the increase occurred more than one year prior to the date an increased rating claim is received by VA, the effective date shall be the date that the claim was received, and no earlier. See 38 U.S.C. § 5110(b)(2); Gaston, 605 F.3d at 984. As the evidence does not show total social and occupational impairment, or symptoms indicative of such impairment, in the one year prior to the June 2014 date of claim, the Board finds that an award of 100 percent for PTSD did not become factually ascertainable during the applicable time period so as to warrant an effective date prior to the date of claim, June 18, 2014. Stated another way, because the date of the Veteran’s claim for increased rating for PTSD is later in time than the date entitlement may have arisen, the date the Veteran’s claim was received is, by law, the proper effective date for her increased rating. While the Board is sympathetic to the Veteran’s belief that she is entitled to an earlier effective date for the award of a 100 percent evaluation for PTSD, there is no basis for assigning an effective date earlier than June 18, 2014. The Board is without authority to grant a claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C. § 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). Additionally, as the preponderance of the evidence is against the assignment of any earlier effective date prior to June 18, 2014, for the award of entitlement to a 100 percent evaluation for PTSD, the doctrine of reasonable doubt is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Lumbar spine strain with intervertebral disc syndrome The Veteran also seeks an effective date prior to June 18, 2014, for the award of a 10 percent rating for her service-connected lumbar spine strain with intervertebral disc syndrome (lumbar strain). She also contends an effective date of November 17, 2012, is warranted because she filed an informal claim for increased rating. The Veteran’s lumbar strain is currently rated as 10 percent from June 18, 2014, pursuant to Diagnostic Code 5237. The Veteran originally filed a claim for entitlement to service connection for her lumbar strain in March 2007. In an Octo 2007 decision, the RO granted service connection with a noncompensable rating, effective January 6, 2007, the day following discharge from service. The Veteran submitted additional evidence and filed a motion for reconsideration in April 2008. In a December 2008 rating decision, the RO considered all of the evidence submitted, and continued the noncompensable percent rating. The Veteran was notified of the decision, and of her appellate rights, in a letter dated December 2, 2008. She did not initiate an appeal with an NOD, nor was additional evidence received into the record within one year. Thus, the December 2008 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156 (b), 20.302, 20.1103; see also Buie v. Shinseki 24 Vet. App. 242 (2010). On June 18, 2014, the RO received a VA Form 21-8940 from the Veteran. In a February 2015 rating decision, the RO increased the rating to 10 percent, effective June 18, 2014, the date of receipt of claim for increased evaluation based on individual unemployability. The Veteran and her representative have asserted that her claim was originally filed in November 2012 or, alternatively, in December 2012. The Board has reviewed the record and finds that there is no evidence of any earlier pending formal or informal claim for an increased rating for the service-connected lumbar strain between the final December 2008 rating decision and the Veteran’s claim received in June 2014. As noted regarding the Veteran’s PTSD, in both November and December 2012, the Veteran submitted a VA 21-686C and information detailing a change of address and contact information. There is nothing on the face of either VA 21-686C or their accompanying documents that could have put VA on notice that the Veteran was seeking an increase rating for her service-connected lumbar strain. As such, the Board finds that the Veteran’s filings seeking to add dependents cannot reasonably be construed as an informal claim for increased rating for lumbar strain. The Board also finds no factually ascertainable evidence demonstrating that an increased rating for the Veteran’s service-connected lumbar strain was warranted during the one-year prior to June 18, 2014. Under DC 5237, a percent rating assignable for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. The medical records evidence of record fail to demonstrate a factually ascertainable increase in the severity of Veteran’s lumbar strain -consistent with the abovementioned range of motion findings- during the one-year prior to June 18, 2014. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The Board notes that a February 2012 VA treatment record indicates worsening pain associated with her lumbar strain. She also asserts that her back has been painful since 2007. Even though the Veteran’s symptoms may have predated her claim of entitlement to an increased rating, the earliest date on which a claim for increased rating can be granted is either the date the entitlement arose, or the date the claim was received, whichever is later in time. 38 C.F.R. § 3.400 (o). As noted above, the United States Court of Appeals for the Federal Circuit has explained that when it is established that the increase occurred more than one year prior to the date an increased rating claim is received by VA, the effective date shall be the date that the claim was received, and no earlier. See 38 U.S.C. § 5110 (b)(2); Gaston, 605 F.3d at 984. Thus, in this case, because the date of the Veteran’s claim for increased rating for lumbar strain is later in time than the date entitlement may have arisen, the date the Veteran’s claim was received is, by law, the proper effective date for her increased rating. While the Board is sympathetic to the Veteran’s belief that she is entitled to an earlier effective date for the award of a 10 percent evaluation for lumbar strain, there is no basis for assigning an effective date earlier than June 18, 2014. The Board is without authority to grant a claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C. § 7104; Harvey v. Brown, 6 Vet. App. 416 (1994). As the preponderance of the evidence is against the assignment of an earlier effective date prior to June 18, 2014, for the award of entitlement to a 10 percent evaluation for lumbar strain, the doctrine of reasonable doubt is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Aoughsten, Associate Counsel