Citation Nr: 21004331 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 10-29 881 DATE: January 26, 2021 ORDER Entitlement to an effective date earlier than April 2, 2012 for the assignment of a 70 percent evaluation for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date earlier than April 2, 2012 for the assignment of a 20 percent evaluation for a shell fragment wound (SFW) of the right ulnar nerve is denied. FINDINGS OF FACT 1. Higher ratings for PTSD and right ulnar nerve involvement were established effective April 2, 2012, said to be the date of a request for increased ratings; with entitlement to higher ratings established by subsequent medical evidence. Entitlement to a higher rating was not established by the medical evidence prior to that date. 2. Within a year of a July 2008 rating decision granting service connection and assigning a 30 percent evaluation for PTSD, the Veteran submitted a July 2008 formal application for total disability based on individual unemployability wherein he identified his service connected PTSD symptoms as the primary disability which prevents him from securing or following substantially gainful employment. Since the July 2008 submission, the Veteran also submitted various other informal statements and a request pertaining to an increased rating for his PTSD. 3. Even accepting that a claim for an increased rating was open prior to April 2, 2012, the evidence at that time did not support a higher rating. A May 2012 examination established for the first time that the Veteran’s PTSD symptoms were manifested by occupational and social impairment with deficiencies in most areas. Prior to that date, this degree of impairment had not been clinically established. 4. Even is a claim for an effective date earlier than April 2, 2012 for the assignment of a 20 percent evaluation for SFW of the right ulnar nerve was timely submitted by the Veteran; a May 2012 examination established for the first time entitlement to the higher rating. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 2, 2012, for the assignment of a 70 percent evaluation for PTSD are not met. 38 U.S.C. §§ 5110, 7104; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.157, 3.400 (2019). 2. The criteria for an effective date earlier than April 2, 2012, for the assignment of a 20 percent evaluation for a SFW of the right ulnar nerve are not met. 38 U.S.C. §§ 5110, 7104; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.157, 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1969 to August 1971. Service connection was granted for PTSD by a July 2008 rating decision and the Veteran was assigned a 30 percent evaluation effective June 4, 2007. As detailed above, the Veteran submitted a July 2008 formal application for total disability based on individual unemployability wherein he identified his service connected PTSD symptoms as the primary disability which prevents him from securing or following substantially gainful employment. Since the July 2008 submission, the Veteran also submitted various other informal statements and a request pertaining to an increased rating for his PTSD. In a May 2013 rating decision, the Veteran was assigned a 70 percent evaluation for his PTSD effective April 2, 2012. In July 2019, the Board of Veterans’ Appeals (Board) decided the issues addressed in this decision. The Veteran appealed. In June 2020, the United States Court of Appeals for Veterans Claims (the Court) granted a Joint Motion for Partial Remand (JMPR), vacating the Board’s June 2020 decision and remanded the following issues: entitlement to an effective date earlier than April 2, 2012 for the assignment of a 70 percent evaluation for PTSD; and entitlement to an effective date earlier than April 2, 2012 for the assignment of a 20 percent evaluation for SFW of the right ulnar nerve claims for additional adjudication in accordance with the terms of the JMPR. Specifically, the Court requested that the Board address the informal increased rating claims prior to April 2, 2012 for the Veteran’s service connected disorders above, and provide an adequate statement of reasons and basis for any determinations made. Effective Dates VA law and regulation provides that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2019). Regulations also provide that the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (o)(1) (2019). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400 (o)(2) (2019). Three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1) (2019)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2) (2019)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2) (2019)). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2) (2019). 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); 3.155. Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 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); 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 an intent to file a claim for VA benefits). When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file that could be interpreted to be a formal or informal claim for benefits. Lalonde v. West, 12 Vet. App. 377, 380-381 (1999). Under the revised regulations, although informal claims are no longer recognized, a claimant may submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within one year of receipt of the intent to file a claim. An intent to file a claim must identify the general benefit (e.g., compensation, pension), but need not identify the specific benefit claimed or any medical condition(s) on which the claim is based. 38 C.F.R. § 3.155 (b). 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. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. 1. Entitlement to an effective date earlier than April 2, 2012 for the assignment of a 70 percent evaluation for PTSD The Veteran contends that he is entitled to an effective date earlier than April 2, 2012 for the assignment of a 70 percent evaluation for PTSD. Review of the record for the time preceding April 2, 2012 reveals VA outpatient treatment records which do not demonstrate that the Veteran’s PTSD increased in severity or that symptoms manifested that are consistent with the higher 70 percent disability rating. The Veteran also submitted several lay statements asserting that his PTSD symptoms cause him social and occupational impairment. In a December 2008 VA PTSD examination, the Veteran presented well-groomed, very cooperative, and with good eye contact. The examiner diagnosed the Veteran’s thought process, speech, and judgment as normal. The examiner diagnosed the Veteran with PTSD and noted that the Veteran experiences persistent symptoms of increased arousal and chronic insomnia. The Veteran also reported that he isolates himself as he is more comfortable being alone. However, the Veteran reported the regular activities of working around his home, going to the post office, and grocery shopping. The examiner diagnosed no evidence of hallucinations or suicidal ideation. However, the examiner noted that the Veteran’s recall was slightly impaired. The examiner also determined that the Veteran’s symptoms do not appear to be more frequent, intense, or disabling than they were in his June 2008 PTSD examination. Moreover, the examiner determined that the Veteran’s PTSD does not render him unemployable. A May 2012 VA PTSD examination revealed findings of occupational and social impairment with deficiencies in most areas, and a 70 percent rating was assigned effective April 2, 2012. This was said to be the date of a claim for an increase. The Joint Motion indicated that more complete review should be given to whether a prior rating was final, to include whether other correspondence indicated timely disagreement. This could have the effect of a claim having been open at the time of the grant of the 70 percent rating. The Board concludes that it need not reach a definitive conclusion on that matter because even if a claim was open, prior to the May 2012 examination, it was not shown by the clinical evidence that a 70 percent rating was warranted. As such even if there were an unresolved claim, an increase would not have been warranted until the May 2012 exam. That the RO chose the April 2012 date to start the benefit means the only question to the Board was whether there was a basis for an earlier date. It is concluded, given the medical evidence that there was not. As such an effective date earlier than April 2, 2012 is not warranted. The Board also reviewed and carefully considered the Veteran’s lay statements asserting that the severity of his service-connected PTSD prior to April 2, 2012 warrants a 70 percent evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to PTSD as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After a review of the record, the Board has determined that it was not until the May 2012 VA PTSD examination that impairment warranting these ratings was objectively demonstrated. Being that the Veteran cannot present any probative medical evidence that warrants a 70 percent evaluation of an earlier effective date prior to April 2, 2012. 2. Entitlement to an effective date earlier than April 2, 2012 for the assignment of a 20 percent evaluation for SFW of the right ulnar nerve The Veteran contends that he is entitled to effective date earlier than April 2, 2012 for the assignment of a 20 percent evaluation for SFW residuals of the right ulnar nerve. Review of the record for the time preceding April 2, 2012 reveals VA outpatient treatment records which do not demonstrate that the Veteran’s SFW of the right ulnar nerve increased in severity or that symptoms manifested that are consistent with the higher 20 percent disability rating. The Veteran also submitted several lay statements asserting that his SFW of the right ulnar nerve symptoms cause him social and occupational impairment. In a May 2012 VA examination, moderate incomplete paralysis of the ulnar nerve was diagnosed, and a 20 percent rating was assigned effective April 2, 2012. As above, this was taken as the date of the claim for an increase. Even if an earlier claim was found to be open, entitlement was not shown until the May 2012 exam. Thus, there is no basis or an earlier date. The Board also reviewed and carefully considered the Veteran’s lay statements asserting that the severity of his service-connected SFW of the right ulnar nerve prior to April 2, 2012 warrants a 20 percent evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to SFW of the right ulnar nerve as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After a review of the record, the Board has determined that it was not until the May 2012 VA examination that impairment warranting these ratings was objectively demonstrated. Being that the Veteran cannot present any probative medical evidence that warrants a 20 percent evaluation of an earlier effective date prior to April 2, 2012. Thus, the proper effective date is the date assigned, April 2, 2012. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elliot Harris, Associate 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.