Citation Nr: 1808141 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 16-04 078 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to an effective date prior to November 12, 2013 for the grant of a 70 percent evaluation for posttraumatic stress disorder (PTSD) with major depressive disorder. REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from December 1954 to February 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In the August 2014 rating decision, in pertinent part, the RO granted an increased, 70 percent disability evaluation for PTSD with major depressive disorder, and assigned an effective date of November 13, 2013. In a December 2015 rating decision, the RO granted an earlier effective date of November 12, 2013 for the grant of a 70 percent disability rating for PTSD with major depressive disorder. The Veteran continues to disagree with the effective date assigned for the grant of a 70 percent disability rating for his service-connected PTSD with major depressive disorder. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In a September 2011 rating decision, the Veteran was granted service connection for PTSD with major depressive disorder and assigned a 50 percent disability rating, effective November 24, 2010. The Veteran did not appeal this rating decision and it became final. 2. On November 12, 2013, an informal claim for an increased rating for PTSD was received from the Veteran. 3. In an August 2014 rating decision, a 70 percent rating was granted for the service-connected PTSD with major depressive disorder, effective November 13, 2013. A December 2015 rating decision assigned an effective date of November 12, 2013 for the grant of a 70 percent disability rating for PTSD with major depressive disorder. 3. There were no formal or informal claims for an increased disability rating for PTSD with major depressive disorder between the September 2011 rating decision and November 12, 2013, nor can any such claims be inferred. 4. The exact onset of the Veteran's current symptoms and level of disability cannot be determined; however, it was factually ascertainable that an increase in severity of the Veteran's PTSD with major depressive disorder occurred one year prior to his claim for an increased disability rating. CONCLUSION OF LAW The criteria for an effective date of November 12, 2012, but no earlier, for a grant of a 70 percent disability rating for PTSD with major depressive disorder have been met. 38 U.S.C.A. §§ 5103, 5103A, 5110 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued a notice letter to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claim for an increased disability rating, as well as the legal criteria for entitlement to such benefits; the Veteran's claim for an earlier effective date is downstream from his initial claim. Nevertheless, the letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of post-service treatment, and the Veteran's own statements in support of his claim. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Earlier Effective Date Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a). The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release. 38 U.S.C.A. § 5110(b)(1). 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) (2017). The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case. Id. at 57,686. The law provides that the effective date of an award of increased compensation 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. 38 U.S.C.A. § 5110(b)(2). Where compensation or pension is increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier. 38 U.S.C.A. § 5110(g). The Court has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating. See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, three possible dates may be assigned depending on the facts of the 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); (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); 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); see also Harper v. Brown, supra. The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The Veteran contends he should be entitled to an earlier effective date for the assignment of the 70 percent disability rating for his PTSD with major depressive disorder. In evaluating his claim, the Board must first identify the date of claim and then identify the date entitlement arose. In November 2010, the RO received the Veteran's claim for service connection for PTSD with major depressive disorder. In a September 2011 rating decision, the RO, in pertinent part, granted service connection for PTSD, and assigned a 50 percent rating, effective from November 24, 2010. The Veteran did not appeal that decision and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In November 2013, the Veteran filed a claim for an increased rating for PTSD. In an August 2014 rating decision, the RO granted an increased, 70 percent rating for PTSD with major depressive disorder, effective from November 13, 2013. Thereafter, the Veteran next filed a claim for an increased rating for PTSD on February 16, 2014. On that date, he requested that "VA increase my 70 percent PTSD", noting that he was having problems keeping jobs, had not worked for the past year, had failed out of an educational program, and his personal and family relationships were failing despite his best efforts. At that time, the Veteran also filed a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU rating), claiming that his PTSD with major depressive disorder affected full time employment. In March 2014, the Veteran underwent a VA examination to assess the severity of his PTSD. The VA examiner opined that the Veteran's PTSD symptoms caused clinically significant distress or impairment of occupational, social, and/or other important areas of functioning. His PTSD symptoms included depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work like setting; flattened affect; and suicidal ideation. The VA examiner noted that the Veteran's symptoms remained mostly stable with only a mild increase in the nature, scope, and severity of his PTSD with major depressive disorder since the summer of 2013. Review of VA treatment records dated June 2012 through November 2012 show that the earliest treatment record received after the final September 2011 rating decision, was a VA treatment record dated June 2012. This VA treatment record showed that the Veteran had nightmares, memory loss, difficulty concentrating, and an increase in PTSD and depressive symptoms. He was taking prescription medication without real improvement. He was treated again in July, August, September, October, and November 2012. He reported an increase in anxiety, irritability, and depressive symptoms, as well as sleep impairment and nightmares. In November 2012, his mood was noted as unchanged and his medication dosages were increased. Here, the Veteran's claim for increase was received on November 12, 2013. There is simply no indication of the Veteran's intent to file a claim for increase of his service-connected PTSD with major depressive disorder prior to November 2013, nor does the Veteran assert that he filed a claim for increase prior to November 2013. Rather, the Veteran asserts that he should be granted an effective date back to the date of the grant of entitlement to service connection, November 24, 2010. In this case, as previously discussed, no informal or formal claim was received by the RO prior to November 12, 2013, and no intent to apply for benefits related to his service-connected PTSD with major depressive disorder was evidenced prior to that date. As noted, the Veteran does not assert that he submitted a formal or informal claim prior to that date. To this point, the Board reiterates that 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), 3.155 (2016). Any communication or action from a claimant indicating intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). The Board acknowledges that, under 38 C.F.R. § 3.157(b)(1) (2015), a report of examination or hospitalization may constitute an informal claim. However, "[t]he mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit." Criswell v. Nicholson, 20 Vet. App.501, 504 (2006). 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); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Thus, the treatment records prior to the November 2013 informal claim cannot, on their own, be considered an informal claim for an increased rating. Additionally, the Veteran did not submit a notice of disagreement, or otherwise indicate that disability evaluation assigned in the September 2011 rating decision did not adequately compensate him for his PTSD with major depressive disorder. Likewise, he did not submit any medical evidence indicating a worsening of his PTSD with major depressive disorder within one year of the date of notice of the grant of service connection for PTSD with major depressive disorder. To the extent that the Veteran asserts that his PTSD with major depressive disorder symptomatology has been severe enough to warrant a higher, 70 percent disability evaluation since the grant of service connection in November 2010, the Board notes that the Veteran is charged with knowledge of the laws addressing filing an appeal or a claim for an increase and when such claim should be filed. The Veteran did not file a notice of disagreement in response to the September 2011 award of a 50 percent disability rating for his PTSD with major depressive disorder or otherwise inform the RO of a recent worsening of his PTSD with major depressive disorder. A claimed lack of knowledge of VA procedure does not assist in obtaining the benefit sought. See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991)(ignorance of the law was not a valid basis for a claimant to assert that he/she should be awarded a benefit because the claimant was unaware of the applicable law(s)). By letter dated September 2011, the Veteran was notified of his appellate rights (VAF 4107). As such, the September 2011 rating decision became final. 38 U.S.C.A. § 7104(b) (West 2014). 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date will be the date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2). In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires: (1) a determination of the date of the receipt of the claim and (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan, 10 Vet. App. at 521. The Board again acknowledges that the Veteran's VA treatment records dated from June 2012 through November 2012, as detailed above, show that the Veteran experienced increases in his PTSD symptoms prior to November 2013, and reiterates that the Veteran experienced intermittent increases in the symptoms of his PTSD with major depressive disorder symptoms prior to November 2013, as treatment and medication alleviated his symptoms at various intervals. The March 2014 VA examiner noted that an evaluation of the Veteran, as well as the aforementioned treatment records, reflected that the severity of the Veteran's symptoms indicated that the Veteran had been stable with only a mild increase in the scope and severity of his PTSD with depressive disorder since the summer of 2013. Therefore, the Board finds that the record reflects an increase in the Veteran's PTSD symptomatology prior to the November 12, 2013, claim for an increase. Nonetheless, the evidence of record does not provide an exact date where it is factually ascertainable as to when his symptoms increased. To this point, the Board notes that, under Harper, an increased in symptomatology more than one year prior to the date of claim requires an effective date no earlier than the date of claim. To the extent that the Veteran's representative is suggesting that the Veteran's symptoms were so severe as to warrant a 70 percent disability rating since November 2010, the Board finds that this date cannot be legally accepted as an effective date as no disagreement with the disability evaluation assigned in the September 2011 rating decision was received within one year of that date. Moreover, the Veteran did not indicate that symptoms had worsened prior to the date of the claim for an increase until he submitted medical evidence in support of his claim, namely, the June 2012 to November 2012 VA treatment records. Nevertheless, as the exact date of increase cannot be determined beyond records reflecting that it likely occurred sometime between November 28, 2012, when his prescription medication dosages were increased in an effort to reduce his worsening symptoms of PTSD with major depressive disorder, and November 2013, when he filed his claim for an increased disability rating, the Board will afford the Veteran the benefit of the doubt and will presume an increase in the severity of the Veteran's PTSD symptomatology from one year prior to the date of claim. As such, an effective date of November 12, 2012, one year prior to the date of receipt of a claim for an increase (November 12, 2013) is the proper effective date for the increased 70 percent disability rating for the service-connected PTSD with major depressive disorder. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Further, to the extent that the Veteran is asserting a freestanding claim for an earlier effective date was submitted prior to the November 12, 2012 date being assigned in this decision, there can be no such valid claim because such a claim vitiates the rule of finality. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Under such circumstances, the Board is constrained by the law and regulations governing the establishment of effective dates for the award of compensation. ORDER Entitlement to an effective date for the award of a 70 percent disability rating for PTSD with major depressive disorder of November 12, 2012, is granted, subject to the laws and provisions governing the award of monetary benefits. ______________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs