Citation Nr: 21002641 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-01 687 DATE: January 14, 2021 ORDER An effective date of May 29, 2009, for the grant of service connection for posttraumatic stress disorder (PTSD) with alcohol use disorder is granted. REMANDED Entitlement to an initial rating in excess of 50 percent for PTSD with alcohol use disorder is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s claim for service connection for PTSD was received May 29, 2009, after the date entitlement to service connection for PTSD arose. CONCLUSION OF LAW The criteria for an effective date of May 29, 2009, for the grant of service connection for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1969 to January 1971 and May 1974 to May 1978. A hearing was held before the undersigned on October 28, 2019. A transcript of the hearing testimony is included in the claims file. At the request of the Veteran’s attorney, the record was held open for 90 days for additional evidence to be submitted. The Veteran’s attorney stated the Veteran would waive consideration by the regional office (RO) of additional evidence. No additional evidence was received. Entitlement to an effective date prior to June 25, 2014, for the award of service connection for PTSD with alcohol use disorder The Veteran seeks an effective date of May 29, 2009, for service connection for PTSD with alcohol use disorder. On May 29, 2009, the Veteran filed a claim to reopen a claim for service connection for PTSD. A previous claim for service connection was denied in a July 2007 rating decision. On September 24, 2009, the RO determined the claim remained denied because the evidence submitted was not new and material. On September 3, 2010, a notice of disagreement (NOD) and VA Form 9 were filed. On June 2, 2011, the RO issued a statement of the case (SOC). An August 1, 2011, report of general information reflects: the Veteran’s attorney called to find out the status of the appeal; she was advised that the SOC was issued on June 2, 2011; she stated she never received it, and a copy was faxed to her. No further action was taken on the appeal by the RO and the Veteran filed another claim for service connection for PTSD in June of 2014. At the time of the hearing, the Veteran’s attorney explained she had in fact perfected the appeal of the May 2009 claim by filing a VA Form 9. On July 13, 2015, in conjunction with the NOD, the attorney provided a copy of: a fax log confirming a submission to the Nashville RO with a fax print date of August 16, 2011, a VA Form 9 signed August 16, 2011, and a cover letter with the same date. Unless specifically provided otherwise, the effective date of an award 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 later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Affording the Veteran the benefit of the doubt, the Board finds that the May 29, 2009, claim was continuously pursued and is the date of the receipt of claim. With respect to when entitlement arose, while the exact date is not clear from the record, the record does suggest entitlement arose prior to the date of claim. For example, the Veteran underwent evaluation for PTSD at the VA medical center and was diagnosed with PTSD by a mental health social worker on April 20, 2009. Considering the date of claim is later than the date entitlement arose, the Board finds that the effective date for the grant of service connection for PTSD is the date of claim, May 29, 2009. REMANDED Entitlement to an initial rating in excess of 50 percent for PTSD with alcohol use disorder is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities is remanded. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 50 percent for PTSD with alcohol use disorder is remanded. At the October 2019 hearing, the Veteran asserted that since his last VA examination in 2015, his symtoms have worsened. For example, he forgets a lot more and cannot be around a lot of people. Therefore, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD. 2. Entitlement to a TDIU is remanded. The record raises a claim of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447. However, a remand is required prior to adjudication of the claim for a TDIU. The Veteran has not been provided adequate notice of the requirements to substantiate TDIU, nor has the RO addressed TDIU in the first instance. Additionally, adjudication of the increased rating claim remanded above may impact the TDIU claim. The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file outstanding VA treatment records, if any. 2. Issue a notice letter to the Veteran and his representative concerning the claim for a TDIU. Ask him to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Upon receipt of the form, complete any additional development necessary. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD with alcohol use disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. 4. Then, readjudicate the Veteran’s claims on appeal, to include TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Vemulapalli 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.