Citation Nr: 20005385 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 16-04 965 DATE: January 23, 2020 ORDER An effective date of June 17, 2013 for the award of a 50 percent rating for posttraumatic stress disorder (PTSD) with secondary alcohol and cannibis use disorder is granted. REMANDED Entitlement to a rating in excess of 10 percent for lumbar strain with degenerative changes is remanded. Entitlement to an increased rating for PTSD with secondary alcohol and cannibis use disorder, rated 50 percent disabling prior to November 1, 2015, and 30 percent disabling thereafter, to include whether the reduction from 50 percent to 30 percent effective November 1, 2015 was proper, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. THE VETERAN’S CONTENTIONS The Veteran seeks an effective date prior to June 17, 2014 for his award of a 50 percent evaluation for an increased rating for his service-connected PTSD with secondary alcohol and cannibis use disorder. See August 2015 notice of disagreement; October 2015 Department of Veterans’ Affairs Regional Office hearing transcript; February 2016 VA Form 9. He also contends that increased ratings are warranted for his service-connected PTSD with secondary alcohol and cannibis use disorder and lumbar strain with degenerative changes. Id. He asserts that he is entitled to TDIU as his service-connected PTSD with secondary alcohol and cannibis use disorder and lumbar strain with degenerative changes prevent him from securing or following any substantially gainful occupation. See February 2015 Veteran’s Application for Increased Compensation Based on Unemployability. FINDINGS OF FACT 1. The Veteran’s claim for an increased rating for his service-connected PTSD with secondary alcohol and cannibis use disorder was received on June 17, 2014. 2. It is factually ascertainable based on the evidence of record that an increase in disability occurred on June 17, 2013, which is within one year prior to the Veteran’s claim. CONCLUSION OF LAW The criteria for an effective date of June 17, 2013 for the award of a 50 percent rating for PTSD with secondary alcohol and cannibis use disorder are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.102, 3.104, 3.151, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the Army from September 2002 to December 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). A subsequent August 2015 rating decision reduced the Veteran’s evaluation for PTSD with secondary alcohol and cannibis use disorder, from 50 percent to 30 percent effective November 1, 2015. In February, August, and December 2016, the Veteran, through his attorney, requested a Board hearing in conjunction with his appeal. However, the Veteran, through his attorney, withdrew his hearing request via correspondence received in August 2019. See 38 C.F.R. § 20.702(e). The Veteran was initially awarded service connection for PTSD in a November 2006 rating decision. On June 17, 2014, he submitted a claim for an increased rating. A September 2014 rating decision increased the Veteran’s evaluation for PTSD from 30 percent to 50 percent effective June 17, 2014, the date of the Veteran’s claim. The Veteran contends that he is entitled to an effective earlier than June 17, 2014 for his awarded service connection for PTSD. The effective date of an increased rating claim shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(1), (2). The evidence does not show, nor does the Veteran contend, that he filed a formal or informal claim for an increased rating for his service-connected PTSD prior to June 17, 2014. However, a VA treatment record shows that on June 17, 2013, the Veteran called his VA primary care provider to report that the nurse practitioner had switched his medication from Citalopram to Wellbutrin and that since then he had been “going downhill.” See June 17, 2013 VA treatment record. A September 2013 VA treatment record shows that the Veteran presented at the emergency department with nausea and anxiety type symptoms. Accordingly, resolving doubt in favor of the Veteran, the Board finds that it is factually ascertainable that an increase in disability occurred within one year from the date of claim, on June 17, 2013. In sum, the Board finds an effective date of June 17, 2013 for the award of a 50 percent rating for PTSD with secondary alcohol and cannibis use disorder is warranted. REASONS FOR REMAND Subsequent to the most recent February 2016 supplemental statement of the case (SSOC) on the issue of an evaluation of PTSD with secondary alcohol and cannibis use disorder, evaluated as 50 percent disabling from June 17, 2014 until November 1, 2015; and the January 2016 statement of the cases (SOCs) on the issues of an evaluation in excess of 10 percent for lumbar strain with degenerative changes, TDIU, and an evaluation of PTSD with secondary alcohol and cannibis use disorder currently evaluated as 30 percent disabling, VA treatment records pertinent to these issues were associated with the claims file. The Board may not consider additional evidence that was not previously reviewed by the agency of original jurisdiction (AOJ) unless a waiver of initial AOJ review is obtained from the Veteran. 38 C.F.R. § 20.1304(c). In October 2019 correspondence, the Board provided the Veteran the opportunity to waive AOJ review and informed him that if the Board did not hear back from him within 45 days, it would remand his appeal to the AOJ for review. A review of the claims file reveals that the Veteran has not filed a waiver or responded to the October 2019 correspondence. Accordingly, a remand is required for initial consideration by the AOJ and issuance of an SSOC on the issues of entitlement to a rating in excess of 10 percent for lumbar strain with degenerative changes; entitlement to an increased rating for PTSD with secondary alcohol and cannibis use disorder, rated 50 percent disabling prior to November 1, 2015, and 30 percent disabling thereafter, to include whether the reduction from 50 percent to 30 percent effective November 1, 2015 was proper; and entitlement to TDIU due to service-connected disabilities. The matters are REMANDED for the following action: Readjudicate the claims for entitlement to a rating in excess of 10 percent for lumbar strain with degenerative changes; entitlement to an increased rating for PTSD with secondary alcohol and cannibis use disorder, rated 50 percent disabling prior to November 1, 2015, and 30 percent disabling thereafter, to include whether the reduction from 50 percent to 30 percent effective November 1, 2015 was proper; and entitlement to TDIU due to service-connected disabilities with consideration of all pertinent evidence, to include the evidence added to the claims file since the most recent February 2016 SSOC and January 2016 SOCs. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an SSOC that reflects consideration of all additional evidence received. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Samuelson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.