Citation Nr: 18129462 Decision Date: 08/28/18 Archive Date: 08/24/18 DOCKET NO. 15-30 410 DATE: August 28, 2018 ORDER Entitlement to an effective date earlier than November 8, 2010, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an initial increased rating for PTSD in excess of 70 percent prior to May 30, 2013, and in excess of 30 percent thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is remanded. FINDING OF FACT The Veteran’s original service connection claim for PTSD was received on November 8, 2010, and no other statement can be construed as formal or informal service connection claim for PTSD prior to this date. CONCLUSION OF LAW The criteria for the assignment of an effective date prior to November 8, 2010, for the award of service connection for PTSD are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) from a June 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran limited his appeal, as reflected on his August 2015 substantive appeal (VA Form 9) to the issue of an increased rating for PTSD for the appellate periods prior and subsequent to May 30, 2013, and the issue of entitlement to an earlier effective date for the award of service connection for PTSD. Moreover, the Board acknowledges receipt of a notice of disagreement (NOD) received in June 2018 with respect to the RO’s July 2017 denial of service connection for a respiratory disorder. The RO has already acknowledged receipt of the NOD and will respond accordingly at a later date. Earlier Effective Date Analysis An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p). With respect to informal claims, the Board recognizes that this case predates the March 2015 changes to 38 C.F.R. § 3.155, and as such, the older version of the regulation applies. Under the former § 3.155, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA may constitute an informal claim, provided that such informal claim identifies the benefit sought. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claim file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Here, in a statement in support of claim dated on November 8, 2010, the Veteran reported that he would like to file a claim for PTSD, and by a letter dated on November 9, 2010, the RO notified him that his November 8, 2010 correspondence “attempting to file a claim for compensation” has been accepted as an informal claim for benefits, as it was not filed on the proper application. Thereafter, prior to RO adjudication of the claim, the Veteran submitted a formal claim for PTSD on January 20, 2011, and later, by a third-party correspondence dated on March 13, 2013, the Veteran’s representative indicated that he would like to file a claim for PTSD. Subsequently, by a June 2013 rating decision, the RO granted the Veteran’s service connection claim for PTSD, and assigned an effective date of November 8, 2010, the date of the Veteran’s original claim. The Board reviewed all relevant evidence and finds no basis under the law to award an effective date earlier than November 8, 2010, the date of his original claim for service connection for PTSD. Initially the Board notes that because the Veteran did not file a service connection claim for PTSD within the one year following service discharge, the effective date cannot be the day following the date of service discharge. 38 C.F.R. § 3.400 (b)(2). Next, there is no dispute that the Veteran filed his original service connection claim for PTSD on November 8, 2010. Indeed, there is no correspondence received by VA prior to November 8, 2010, that can be construed as an informal claim for service connection for PTSD. The Board acknowledges the Veteran’s representative’s argument in correspondence dated in June 2018, indicating that evidence of record confirms that the Veteran “suffered from an acquired psychiatric condition prior to November 8, 2010.” The representative further argued, that the RO “failed to develop evidence in accord with its duty-to-assist obligation,” and explained that the RO had the duty to consider all issues either expressly raised by the Veteran or reasonably raised by the evidence of record. The representative explained that review of the medical record shows that the Veteran was prescribed anti-anxiety medication as early as 1968. Nevertheless, these arguments are without merit here. The mere existence or even receipt of medical records does not establish that the Veteran has filed a claim for service connection. Moreover, no clinical records prior to November 8, 2010 indicate any intent on the part of the Veteran to apply for service connection for PTSD. Where a claimant has not previously been granted service connection, VA's receipt of medical records cannot be construed as an informal claim. Lalonde v. West, 12 Vet. App. 377, 382 (1999). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a veteran suffers from a disability does not establish intent on the part of the veteran to seek service connection for that disability. Brannon v. West, 12 Vet. App. 32, 34, 35 (1998). Further, the Federal Circuit Court has held that the mere mention of a condition in a medical record, alone, cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. §§ 3.155, 3.157. As set out above, the relevant regulation requires that a claim, or at least some application that reasonably viewed can be considered a claim, be filed. Here, there was no such claim prior to the currently assigned effective date. Consequently, there is no legal basis upon which to grant an effective date prior to November 8, 2010, for the grant of service connection for PTSD. The Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104(c). The claim of entitlement to an effective date earlier than November 8, 2010, for the award of service connection for PTSD must be denied. REASONS FOR REMAND A remand is necessary to determine the current severity of the Veteran’s PTSD and to clarify the level of severity throughout the pendency of the appeal. Notably, the Veteran underwent VA examinations for PTSD in April 2011 and May 2013. Based on the April 2011 findings, the RO assigned a 70 percent disability rating for PTSD, and based on the May 2013 findings, the RO then assigned a 30 percent beginning on May 30, 2013. First, the Board recognizes the assertion presented by the Veteran’s representative that the “reduction” from 70 percent to 30 percent in the June 2013 rating decision was improper. However, the Board notes that the RO, in its June 2013 rating decision, did not reduce per se the rating for PTSD; there was no reduction or discontinuance of compensation payments already being made. Rather, the RO assigned initial staged ratings based on the evidence of record. Accordingly, the assignment of ratings in the June 2013 rating decision does not constitute a reduction in compensation, and the process specified in 38 C.F.R. § 3.105(e) (2017) was not required. See O’Connell v. Nicolson, 21 Vet. App. 89, 93 (2007); Hamer v. Shinseki, 24 Vet. App. 58, 61-62 (2010). Nevertheless, the Board finds that additional explanation from a medical examiner is needed to help clarify the severity of the Veteran’s PTSD from 2011 to 2013. In other words, confirmation is needed as to whether the Veteran’s PTSD fluctuated during that time period to the extent that it improved as reflected by the assigned 70 percent rating followed by the assigned 30 percent rating. Further, in a February 2017 statement in support of claim, the Veteran described worsening of his psychiatric symptoms since he was last examined in May 2013. Consequently, an updated VA examination is necessary. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Lastly, by June 2018 correspondence, it was asserted that the Veteran’s disabilities prevent him from working, and thus the issue of unemployability has been raised and is part and parcel of the increased rating claim on appeal here. However, because the Veteran’s claim for increase for PTSD is being remanded herein, it would be potentially prejudicial to the Veteran for the Board to consider this derivative TDIU issue prior to the determination of such other claim. See Bernard v. Brown, 4 Vet. App. 384 (1993). Specifically, because the matter discussed above will have a substantial effect on the merits of his request for a TDIU, it is inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered); see also Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009). The matter is REMANDED for the following action: 1. Send the Veteran the appropriate notice as to how to substantiate a request for a TDIU. Also provide him with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the form to the RO. However, adjudication of entitlement to TDIU should not be made contingent on whether he submits a completed application. 2. After associating any outstanding VA treatment notes with the claims file, provide the Veteran with a VA mental health examination to determine the current extent and severity of his service-connected PTSD. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. All necessary tests should be conducted. After review of the claims file and examination of the Veteran, the examiner is asked to respond to the following: (a) Provide an opinion on the level of severity of the Veteran’s PTSD since the beginning of the period on appeal from November 2011, forward. Specifically, explain the perceived fluctuation in severity between his April 2011 and May 2013 examinations. (b) Determine the current level of severity of the Veteran’s PTSD, to include any impact on his ability to work. 3. Thereafter, adjudicate the initial increased rating on appeal, as well as the claim for TDIU. If the Veteran does not meet the schedular criteria for a TDIU, refer his TDIU claim to the Director of Compensation Service or designee for consideration of whether an extraschedular rating is warranted.   4. Finally, readjudicate the remanded claims on appeal. If the benefits on appeal remain denied, furnish the Veteran and his representative with a copy of a supplemental statement of the case and allow an appropriate time for response. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel