Citation Nr: 20023906 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 17-17 477 DATE: April 7, 2020 ORDER The claim of entitlement to an earlier effective date of September 26, 2008, for the award of service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED The claim of entitlement to an initial rating greater than 70 percent for PTSD is remanded. The claim of entitlement to an effective date earlier than December 23, 2014, for an award of a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. The claim of entitlement to an effective date earlier than December 23, 2014, for the establishment of basic eligibility for Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38, United States Code, is remanded. FINDINGS OF FACT On September 26, 2008, VA received from the Veteran a VA Form 21-526 (Veteran’s Application for Compensation and/or Pension), which, when read sympathetically, raised a claim for VA compensation for PTSD. CONCLUSION OF LAW The criteria for an effective date of September 26, 2008, for the award of service connection for PTSD are met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.151. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from September 1973 to September 1977. This appeal to the Board of Veterans’ Appeals (Board) arose from a June 2016 rating decision in which a decision review officer (DRO) granted service connection for PTSD, evaluated as 70 percent disabling, effective from November 23, 2010; granted entitlement to a TDIU, effective December 23, 2014; and determined that basic eligibility for DEA benefits had been established, effective December 23, 2014. In October 2016, the Veteran filed a notice of disagreement (NOD) with the effective date assigned in connection with his awards of PTSD and a TDIU, as well as with the establishment of basic eligibility for DEA. The Veteran also disagreed with the initially assigned 70 percent rating for PTSD. A statement of the case (SOC) was issued in February 2017 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) the following month. Turning first to whether an effective date earlier than November 23, 2010, for the award of service connection for PTSD is warranted, the Board notes that by way of a June 2016 rating decision, the Veteran was awarded service connection for PTSD, evaluated as 70 percent disabling. The award of service connection was made effective November 23, 2010, which the agency of original jurisdiction (AOJ) found to be the date the Veteran’s claim for service connection for PTSD was first received. In disagreeing with assigned effective date, the Veteran, through counsel, has argued that the effective date should be September 26, 2008, as a VA Form 21-526 (Veteran’s Application for Compensation and/or Pension) received on that date was a claim both compensation and for pension. Generally, the effective date of an original award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, a claim could be either a formal or informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1(p) (2014). But see 38 C.F.R. § 3.1(p) (2015) (now providing that a “claim” must be submitted on an application form prescribed by the Secretary); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). It has been held that: [a]n intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing.... It follows logically that where there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised. Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006); 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, a claim, whether “formal” or “informal,” must be “in writing” in order to be considered a “claim” or “application” for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Relevant to the current appeal, the Board notes that disability compensation and nonservice-connected pension are distinct benefits. Compensation remunerates veterans for disabilities shown to have been caused or aggravated by service or service-connected conditions. 38 U.S.C. §§ 1110, 1131. Pension, on the other hand, is a needs-based program payable to wartime veterans with diminished income who are permanently and totally disabled because of disability, service-connected or otherwise. 38 U.S.C. §§ 1513, 1521, 1522. Although VA now has separate applications for these benefits, in 2008 a single application was used for both. Regarding applications for pension and/or compensation, a claim by a Veteran for compensation may be considered to be a claim for pension; and a claim by a Veteran for pension may be considered to be a claim for compensation. 38 C.F.R. § 3.151(a). However, a claim for pension is not necessarily a claim for compensation. Stewart v. Brown, 10 Vet. App. 15, 18 (1997) (VA is not automatically required to treat every compensation claim as also being a pension claim or vice versa). Rather, as the United States Court of Appeals for Veterans Claims (Court) stated in Stewart, “VA has to exercise discretion under 38 C.F.R. § 3.151(a) in accordance with the contents of the application and the evidence in support of it.” Id. (citing Willis v. Brown, 6 Vet. App. 433, 435 (1994) (the operative word “may” in the regulation, clearly indicates discretion)). Notably, when reviewing an application for benefits, like other pro se filings, VA must give it “a sympathetic reading” so as “determine all claims for recovery supported by a liberal construction.” Szemraj v. Principi, 357 F.3d 1370, 1376 (Fed. Cir. 2004). The three essential elements of all claims are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Here, the record shows that on September 26, 2008, VA received from the Veteran a VA Form 21-526 (Veteran’s Application for Compensation and/or Pension). On that application, the Veteran stated specifically that he was applying for pension benefits. He did not check the box indicating that he also intended to apply for compensation benefits. Nevertheless, this application constitutes a written communication that indicated an intent to apply for benefits. The issue thus becomes whether the application, when read sympathetically, identified compensation as the benefit sought in connection with the disorder specified. As for identifying the benefit sought, the Veteran circled that he was seeking pension and crossed out the other options, to include compensation. The Veteran then completed items 1 through 26 of the form, which items ask for general information not specific to either compensation or pension. With regard to Part B of the form, pertaining to compensation, the Veteran crossed out section I, which ask what disability the Veteran was claiming, and wrote “NSC” across that section. However, in section II, the Veteran reported his disability to be PTSD. Then, in Part D, pertaining to pension, the Veteran reported that PTSD was the disability that prevented his from working and stated that his PTSD began in 1972, while he was still in service. In addition to the VA Form 21-256, the Veteran also submitted a VA medical record showing that he had been diagnosed as having PTSD in addition to a letter requesting “any assistance” that could be rendered on his behalf. In the instant case, although the Veteran had crossed out section I of Part B, the Veteran did state in section II of Part B, the portion of the applications which pertains to compensation, that he was suffering from PTSD. The Board finds that this creates some ambiguity regarding whether the Veteran was seeking one benefit to the exclusion of the other, and the Board finds that such ambiguity should be resolved in favor of the veteran.” Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004). It is noteworthy that the Veteran did report that his PTSD began while he was in service. The Board points out that the question here is not whether an undisputed application for pension should have been sympathetically construed as an application for compensation as well. Rather, the question is for which benefit that application constituted a claim. Cf. 38 C.F.R. § 3.151(a) (“The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit.”). Overall, although the Veteran did not, in the September 2008 application for benefits, state explicitly that he was seeking disability compensation, upon a sympathetic reading of the application in its entirety, the Board concludes that the VA Form 21-526, received on September 26, 2008, constitutes a claim for compensation for PTSD. See 38 C.F.R. § 3.151(a). Notably, when VA receives a claim but fails to adjudicate it, the claim remains pending. See Cogburn v. Shinseki, 24 Vet. App. 205, 210 (2010). Additionally, if VA awards compensation while a previous claim for that benefit is still pending, then the effective date for that award can be as early as the date of the previous claim. See Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007). A review of the evidence of record at the time of the September 2008 application for VA benefits demonstrates that the Veteran then had a diagnosis of PTSD. Indeed, VA treatment records dated in 2004 contain a diagnosis of PTSD, “military related.” When seen in mental health in July 2004, the Veteran reported several in-service traumatic experiences. One of those reported stressors later served as a basis for the Veteran’s diagnosis of PTSD by a VA contract examiner in 2016, which examiner opined that the Veteran’s PTSD was at least as likely as not incurred in or otherwise related to the reported in-service stressor. Accordingly, as a diagnosis of PTSD attributable to service existed at the time that the Veteran filed his September 2008 claim, the Board finds that in this case, there is a not a question as to when entitlement arose. Consequently, because the Veteran’s September 26, 2008, application for VA benefits is construed as a claim for compensation for PTSD, the Board finds that an effective date of September 26, 2008, is warranted for the award of service connection for PTSD. See 38 C.F.R. § 3.400(b)(2)(i). REASONS FOR REMAND Having determined that an effective date of September 26, 2008, for the grant of service connection for PTSD is warranted, the Board finds that before it can adjudicate that the Veteran’s claim for an initial rating greater than 70 percent for PTSD, the matter must be remanded for the AOJ to determine in the first instance the appropriate rating for the Veteran’s PTSD prior to November 23, 2010. See Bernard v. Brown, 4 Vet. App. 384 (1993). As for the issues of entitlement to effective dates earlier than December 23, 2014, for the award of a TDIU and establishment of basic eligibility for DEA benefits, the Board finds that those claims must also be remanded as they are inextricably intertwined with the claim for a higher initial rating for PTSD. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). While these matters are on remand, to ensure that the record is complete, the AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the remaining claims appeal, explaining that he has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1). But see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claims on appeal. The matters are hereby REMANDED for the following action: 1. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the remaining claims on appeal that is not currently of record, to include any private (non-VA) medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After implementing the Board’s award of an earlier effective date for the award of service connection for PTSD and after completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the remaining claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. In adjudicating the Veteran’s claim for an earlier effective date for the award of a TDIU, the AOJ is directed to consider and address whether, in this case, entitlement to a TDIU is a component of the Veteran’s PTSD rating claim consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.