Citation Nr: 18140332 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 14-35 618 DATE: October 3, 2018 ORDER An effective date earlier than April 8, 2013, for the award of a 100 percent disability rating for posttraumatic stress disorder (PTSD) is denied. An effective date earlier than April 8, 2013, for the award of special monthly compensation (SMC) at the housebound rate is denied. An effective date earlier than April 8, 2013, for the award of dependents’ educational assistance (DEA) under 38 U.S.C. chapter 35 is denied.   FINDINGS OF FACT 1. The RO issued a May 2013 rating decision that increased the Veteran’s PTSD rating to 100 percent, effective April 8, 2013, which is not only the date of his most recent VA PTSD examination, but also the date of receipt of an informal claim for an increased PTSD rating. 2. The Veteran has a single service-connected disability rated at 100 percent effective April 8, 2013, and no earlier. 3. The Veteran has a permanent total service-connected disability effective April 8, 2013, and no earlier. CONCLUSIONS OF LAW 1. The criteria for assignment of an effective date prior to April 8, 2013, for the award of a 100 percent disability rating for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400; 38 C.F.R. §§ 3.155, 3.157 (2014). 2. The criteria for assignment of an effective date prior to April 8, 2013, for the award of SMC at the housebound rate have not been met. 38 U.S.C. §§ 5110, 1114; 38 C.F.R. §§ 3.350, 3.400. 3. The criteria for assignment of an effective date prior to April 8, 2013, for DEA benefits have not been met. 38 U.S.C. §§ 3501, 5110; 38 C.F.R. §§ 3.400, 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to January 1971. The case is on appeal from a May 2013 rating decision. As further discussed below, the case was before the Board in January 2013 and August 2013, when the sole issue was entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). In March 2018, the Veteran testified at a Board hearing. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Effective Date Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 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). VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). VA amended the regulations to require submissions on standardized claim forms in 2015. However, this change does not apply to the Veteran’s appeal. Additionally, prior to March 24, 2015, according to 38 C.F.R. § 3.157(b), once a claim for compensation was allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital would be accepted as an informal claim for increased benefits. The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(2). 1. An effective date earlier than April 8, 2013, for the award of a 100 percent disability rating for PTSD. The Veteran contends that a date earlier than April 8, 2013, is warranted for the award of a 100 percent disability rating for PTSD. At the March 2018 Board hearing, he contended that the effective date for this rating should be in 2008 because his PTSD symptoms at that time were similar to his symptoms at the April 8, 2013, VA examination, on which the 100 percent rating was based. The background and procedural history inform the outcome of this issue. In March 2008, the Veteran’s representative submitted a claim for an increased PTSD rating, which was 30 percent at that time, and a claim for a TDIU. In an August 2008 rating decision, the RO denied, inter alia, the claims for an increased PTSD rating and for a TDIU. In February 2009, the Veteran’s representative submitted a notice of disagreement (NOD) as to the TDIU issue only. A statement of the case (SOC) was issued in July 2009 addressing only the TDIU issue, and the Veteran timely perfected the appeal of this issue by submitting a substantive appeal (VA Form 9) in September 2009. Also in September 2009, the Veteran’s representative submitted a claim for an increased PTSD rating, still rated as 30 percent disabling at that time. In a January 2010 rating decision, the RO continued the 30 percent rating (and also recharacterized the issue as a different psychiatric disorder, but it has since been characterized as PTSD again). Neither the Veteran nor his representative submitted a timely NOD as to the January 2010 rating decision. A supplemental statement of the case (SSOC) was issued in May 2011, solely addressing the TDIU issue, the appeal of which was perfected in September 2009. In January 2013, the Board remanded the TDIU issue for additional development. While on remand, the Veteran was afforded a VA examination that addressed PTSD on April 8, 2013. In May 2013, the RO: (1) issued a rating decision that increased the PTSD rating to 100 percent, granted SMC at the housebound rate, and granted DEA, all effective April 8, 2013, and (2) issued an SSOC addressing a TDIU prior to April 8, 2013. In June 2013, the Veteran submitted a signed form (appeals satisfaction notice) asking to withdraw any remaining issue on appeal at the Board and indicating that he no longer wanted to pursue the remaining issue in his Board remand. As such, in August 2013, the Board dismissed the Veteran’s appeal as to the TDIU issue. Additionally, in January 2014, the Veteran submitted a timely NOD as to the May 2013 rating decision that increased his PTSD rating to 100 percent, contending that the assigned effective date should be in March 2008, not April 2013. A September 2014 SOC was issued addressing earlier effective dates for a 100 percent PTSD rating, SMC, and DEA. The Veteran perfected the appeal of these issues by submitting an October 2014 VA Form 9. Given these facts, the Board finds that, despite any contentions otherwise, the August 2013 Board dismissal of the TDIU issue is final. A review of the website for the United States Court of Appeals for Veterans Claims (Court) does not reflect that the Board’s dismissal was appealed. The Board’s decision is final as of the date stamped on the face of the decision when it was mailed. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1100. Turning to the PTSD issue in the instant appeal, no written claim was filed for an increase for PTSD following the January 2010 rating decision. Additionally, a pending PTSD claim cannot be considered part of the TDIU claim as the TDIU claim was dismissed. However, the Board finds that the date on which a VA examination was conducted was an informal claim for an increased PTSD rating. This was on April 8, 2013. See 38 C.F.R. §§ 3.155, 3.157 (2014); cf. Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006) (“[W]here there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised.”). The provisions of 38 C.F.R. § 3.157 previously in effect allow for a VA examination report to constitute an informal claim as was the case here when one was conducted in connection with the TDIU claim that has now been dismissed. Thus, the effective date set for the 100 percent rating for PTSD is already the date of claim. Furthermore, the Board considered evidence since April 8, 2012, one year prior to the date of receipt of such increased rating claim. See 38 C.F.R. § 3.400(o)(2). The evidence in the year prior to the date of the informal claim does not show that entitlement to the 100 percent disability rating arose prior to April 8, 2013, because total occupational and social impairment was not shown until the evidence in the April 2013 VA examination report. While the April 2013 examiner summarized the Veteran’s level of occupational and social impairment as “total occupational and social impairment,” consistent with the 100 percent disability rating criteria, the Board notes that it is questionable whether his PTSD symptoms rose to such level even at the time of the April 2013 examination based on the evident symptomatology. In this regard, while the Veteran did not have full-time employment prior to April 8, 2013, the evidence fails to show the Veteran exhibited PTSD symptoms prior to this date that were so severely disabling as to manifest as any of the severe symptoms, or similar symptoms, listed as examples in the 100 percent rating criteria: 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 minimal personal hygiene); disorientation to time and place; or memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411; see also Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, it is not factually ascertainable that an increase to 100 percent occurred during the one year look-back period for increased rating effective dates. In consideration of this information, the preponderance of the evidence is against the claim as the effective date is already the date of claim, which is the earliest allowable effective date for this case. As such, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, an effective date earlier than April 8, 2013 is not warranted for the award of a 100 percent rating for PTSD. 2. An effective date earlier than April 8, 2013, for the award of SMC at the housebound rate. The SMC provided by 38 U.S.C. § 1114(s) is payable where the veteran has a single service-connected disability rated as 100 percent and (1) has additional disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. Because April 8, 2013, is the date when the Veteran was granted a 100 percent evaluation for PTSD, this date is also the date when the Veteran met the criteria for the award of SMC at the housebound rate. See 38 U.S.C.§ 1114(s); 38 C.F.R. § 3.350(i); Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Therefore, as an effective date prior to April 8, 2013, for a 100 percent rating for PTSD was denied above, an award of SMC at the housebound rate prior to this date is also not warranted. 3. An effective date earlier than April 8, 2013, for the award of DEA benefits. In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) the veteran’s discharge from service under conditions other than dishonorable; and (2) the veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term “total disability permanent in nature” for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7). Like the SMC issue above, the RO’s grant of DEA benefits was based on the April 8, 2013, award date of the 100 percent rating for PTSD. Therefore, because the effective date for DEA benefits is directly related to a finding that the Veteran has a total disability that is permanent in nature by virtue of his 100 percent PTSD rating, an effective date earlier than April 8, 2013, for chapter 35 benefits is not warranted as the Veteran’s 100 percent PTSD rating is effective April 8, 2013, and no earlier, as discussed above. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Santiago, Counsel