Citation Nr: 20051985 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 16-07 908 DATE: August 5, 2020 ORDER Entitlement to an effective date of January 26, 2010, but no earlier, for the assignment of an evaluation of 70 percent for service-connected posttraumatic stress disorder (PTSD) with alcohol dependence is granted. FINDINGS OF FACT 1. The Veteran filed a claim for an increased evaluation for PTSD with alcohol dependence on December 18, 2009. 2. It was factually ascertainable as of January 26, 2010, but no earlier, that the Veteran’s PTSD with alcohol dependence increased in severity and more closely approximated the criteria for a 70 percent evaluation. CONCLUSION OF LAW The criteria for an effective date of January 26, 2010, but no earlier, for the assignment of a 70 percent evaluation for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO increased the evaluation for the Veteran’s service-connected PTSD with alcohol dependence to 70 percent effective from January 8, 2015. In October 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. Law and Analysis Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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 increase 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. 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean, 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 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (“It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.”); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (“increase” for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. However, because the Veteran’s claim was received by VA prior to that date, the former regulations apply, as provided below. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or ‘application” means 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). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to an effective date of January 26, 2010, for the assignment of a 70 percent evaluation for PTSD with alcohol dependence. The Veteran filed a claim for an increased evaluation for PTSD on December 18, 2019, which the RO denied in a July 2010 rating decision. The Veteran was notified of that decision and of his appellate rights, but he did not file a notice of disagreement (NOD). However, he did submit a March 2011 supplemental claim and a May 2011 private examination report, which was new and material evidence. Therefore, 38 C.F.R. § 3.156(b) applies, and the July 2010 rating decision did not become final. Thereafter, in a September 2011 rating decision, the RO denied entitlement to an evaluation in excess of 50 percent. The Veteran was notified of that decision and of his appellate rights in October 2011. In May 2012, the Veteran’s representative requested that the letter be treated as a NOD with any decision that may have been issued in the past year. The RO acknowledged and accepted the NOD in July 2013 correspondence, and in an October 2015 rating decision, the RO increased the evaluation for PTSD with alcohol dependence to 70 percent effective from January 8, 2015, which was the date of a VA examination report. The Veteran appealed the effective date for the assignment of the 70 percent evaluation. Based on the foregoing, the informal claim that was received on December 18, 2009, remained pending. Thus, the remaining question is when it became factually ascertainable that an increase in the severity of the Veteran’s PTSD with alcohol dependence occurred. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Under the criteria for the General Rating Formula for Rating Mental Disorders, a 50 percent disability evaluation is assigned for psychiatric disorders causing occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. During a January 26, 2010, VA examination, the examiner noted that there was no report of a history of delusions, but indicated that he did observe a delusion during the examination itself. The examiner stated that the Veteran has a delusional system in place about demons fighting in his mind. He also noted that there was a history of intermittent hallucinations, including auditory hallucinations. The examiner further indicated that the Veteran’s communication was grossly impaired, and he had intermittent abnormal speech, abnormal abstract thinking, and impaired thought processes, as he has psychotic processes. In addition, he stated that the Veteran has difficulty establishing effective work/school and social relationships because he becomes irritable and paranoid even though he is able to maintain his role in family functioning and has no difficulty with recreational and leisure pursuits. A May 2011 private examination report characterized the Veteran’s symptoms as moderate with normal speech, communication, orientation, affect, mood, concentration, judgment, and abstract thinking. His appearance, hygiene, and behavior were appropriate, and he did not have panic attacks, delusions, hallucinations, obsessive compulsive behavior, or suicidal or homicidal ideation. The examiner indicated there are no behavioral, cognitive, social, affective, or somatic symptoms attributable to the Veteran’s PTSD. However, it was further noted that he did have social isolation. A December 2011 VA treatment record noted that the Veteran was seeking mental health treatment based on his wife’s request. She reported that he isolates himself, seems detached from their family, and prefers to be alone outside with his thoughts. She indicated that the Veteran will go days without bathing and stay in the same clothes while sitting outside watching perimeter. She has to remind him to take a bath. The Veteran’s wife also reported that he was unable to show loving feelings towards her or their grandchildren. In addition, the Veteran reported that he does not have many friends and refused to answer whether he has hallucinations because he did not know the physician well enough. Overall, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record shows that, since January 26, 2010, the Veteran more closely approximated the criteria for a 70 percent evaluation for PTSD with alcohol dependence, particularly in light of the documented symptoms such as delusions, hallucinations, and social isolation. Accordingly, an effective date of January 26, 2010, is warranted for the assignment of a 70 percent evaluation. The Board has also considered whether an effective date prior to January 26, 2010, is warranted, to include the one-year period preceding the filing of the December 18, 2009, claim. However, in October 2019, the Veteran’s representative indicated that they were only seeking an effective date of December 1, 2011, which is later than the effective date granted in this decision. Moreover, the evidence does not show that it was factually ascertainable that the disability increased in severity between December 18, 2008, and January 26, 2010. In fact, there was no evidence received during that time period. The Board does acknowledge that VA treatment records were later added to the claims file that are dated during this time period, which would have been in VA’s constructive possession. However, those records do not pertain to the Veteran’s PTSD. As such, it was not factually ascertainable that the Veteran met the criteria for a 70 percent evaluation between December 18, 2008, and January 26, 2010. Based on the foregoing, the Board concludes that the Veteran is entitled to an effective date of January 26, 2010, but no earlier, for the assignment of a 70 percent evaluation for his PTSD with alcohol dependence. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.M. Walker 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.