Citation Nr: 21065433 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-49 311 DATE: October 26, 2021 ORDER An effective date earlier than November 17, 2004 for the grant of service connection for posttraumatic stress disorder (PTSD), is denied. REMANDED Entitlement to the assignment of a total disability rating based on individual unemployability (TDIU) prior to January 14, 2013, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. In an August 1998 rating decision, the RO denied service connection for depression; the Veteran did not appeal the rating decision and did not submit new and material evidence within the one-year appeal period. 2. On November 17, 2004, the Veteran's claim for service connection for PTSD was received; no claim, formal or unformal, for service connection for an acquired psychiatric disorder was received following the August 1998 rating decision, until November 17, 2004. 3. A March 2012 rating decision granted service connection for PTSD with an effective date of November 17, 2004. CONCLUSIONS OF LAW 1. The August 1998 rating decision that denied service connection for depression is final. 38 U.S.C. § 7105; 38 C.F.R. § 19.20, 19.52 2. The criteria for an effective date earlier than November 17, 2004, for the grant of service connection for PTSD are not met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.155 (in effect prior to March 24, 2015), 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1980 to January 1988. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a March 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision granted service connection for PTSD, and assigned an initial 50 percent rating, effective from November 17, 2004. The Veteran's Notice of Disagreement (NOD) with the effective date of service connection and the initial 50 percent disability rating assigned, was received in March 2012, and another timely NOD was received in February 2013. In a March 2014 rating decision, the RO increased the disability rating for the service-connected PTSD from 50 percent to 70 percent effective January 14, 2013, and granted a TDIU from January 14, 2013. The Veteran's Notice of Disagreement (NOD) with the TDIU effective date was received in March 2014. In his NOD, the Veteran indicated that he should be awarded 100 percent disability dating back to November 17, 2004. The Statement of the Case (SOC) with respect to the issue of entitlement to an earlier effective date for the grant of service connection for PTSD was issued in July 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in September 2017. In his VA Form 9, the Veteran indicated that he disagreed with the effective date of the claim granted in March 2014. He also indicated that he disagreed with the percentage rate of the claim granted to him in March 2012 (a March 2012 rating decision, discussed below, granted service connection for PTSD with an initial disability rating of 50 percent from November 17, 2004) and should have been 100 percent unemployable. The Veteran indicated that the effective date for the grant of service connection for PTSD was October 2004, and that the effective date for the grant of a TDIU should also be October 2004. In March 2019, the Board remanded the claims of entitlement to an increased disability rating for the service-connected GERD and PTSD, pursuant to the holding in Manlincon v. West, 12 Vet. App. 238 (1999), instructing the RO to issue a statement of the case addressing the issue of entitlement to an initial compensable disability rating prior to December 17, 2012, and in excess of 10 percent thereafter for the service-connected GERD; and, the issue of entitlement to an initial disability rating in excess of 50 percent prior to January 14, 2013, and in excess of 70 percent thereafter, for the service-connected PTSD. In addition, the Board remanded the issue of whether an effective date prior to November 17, 2004 is warranted for the grant of service connection for PTSD. The Board also took jurisdiction over an inextricably intertwined claim of entitlement to a TDIU prior to January 14, 2013. In July 2020, the RO issued an SOC addressing the GERD increased rating claim; and, in January 2021, the RO issued an SOC addressing the PTSD increased rating claim. The Veteran did not thereafter submit a VA Form 9, substantive appeal to the Board. Accordingly, the increased rating issues are not currently in appellate status or before the Board at this time. Effective Date Generally, 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 U.S.C. §5110(a); 38 C.F.R. §3.400. The effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. §5110(b)(1); 38 C.F.R. §3.400(b)(2)(i). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case. Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, 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. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. §3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Entitlement to an effective date earlier than November 17, 2004 for the grant of service connection for PTSD. In April 1998, the Veteran filed his original claim for service connection for depression. His claim was denied in an August 1998 rating decision. The Veteran was notified of the rating decision and his appellate rights in August 1998. The Veteran did not appeal the rating decision and did not submit new and material evidence within one year. Therefore, the August 1998 rating decision became final. See 38 U.S.C. §7105(d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§3.104, 3.156(a)-(b), 19.20, 19.21, 19.50, 19.52. On November 17, 2004, the Veteran filed a claim for service connection for PTSD. A March 2012 rating decision granted service connection for PTSD with an initial 50 percent disability rating from November 17, 2004, the date the Veteran filed his claim. No claim, formal or informal, was filed between the April 1998 rating decision and November 17, 2004. In light of the above, an effective date earlier than November 17, 2004 for the grant of service connection for PTSD is denied. In this case, the August 1998 rating decision denying service connection for depression is final, as the Veteran did not submit an NOD or new and material evidence within one year of that rating decision. Furthermore, the evidence reflects that there is no unadjudicated formal or informal application to reopen the previously denied claim of service connection for depression, PTSD, or any other psychiatric disability between the August 1998 rating decision (and its contemporaneous notification letter) and the November 17, 2004 claim. To this extent, the evidence between the August 1998 rating decision (and its contemporaneous notification letter) and the November 17, 2004 claim includes the Veteran's military personnel records, a September 2004 authorization to release medical records, the Veteran's VA treatment records, and a PTSD article submitted in October 2004. These records do not constitute a formal or informal claim for service connection for PTSD as they do not contain an intent to seek a benefit or identification of which benefit is sought. 38 C.F.R. § 3.155 (prior to March 2015 revisions noted above). In sum, there is no unadjudicated formal application to reopen the claim of service connection for depression, PTSD, or any other psychiatric disability subsequent to the August 1998 rating decision and prior to the November 17, 2004 claim, nor is there any prior communication in the record that would be considered a formal or informal claim for VA compensation for the same. Thus, November 17, 2004 is the earliest possible effective date for the grant of service connection for PTSD because the August 1998 rating decision became final, and the November 17, 2004 date is the date of the reopened claim following final disallowance in 1998; and, this date of claim is the latter of the date entitlement arose and the date of claim. Accordingly, an effective date earlier than November 17, 2004 for the grant of service connection for PTSD is denied. REASONS FOR REMAND 1. Entitlement to an effective date earlier than January 14, 2013 for the grant of a TDIU. The Veteran seeks an earlier effective date for the grant of a TDIU and asserts that it should be the same date as the grant of service connection for PTSD. The Veteran was granted service connection for PTSD in a March 2012 decision. He was assigned a 50 percent initial disability rating from November 17, 2004. In a March 2012 NOD, the Veteran requested a 100 percent disability dating back to November 17, 2004. In a July 2013 statement, the Veteran indicated that he is unable to work due to his PTSD. Also in July 2013, the Veteran submitted a VA Form 21-8940, asserting that his service-connected PTSD prevents him from securing or following substantially gainful employment, and that he stopped working in 2004. A March 2014 rating decision granted TDIU due to service-connected PTSD from January 14, 2013. January 14, 2013 is the first date on which the Veteran's combined rating was at least 70 percent, with at least one service-connected disability rated as at least 40 percent disabling. Thus, it is the first date on which the Veteran's disability ratings meet the schedular threshold percentage requirements for consideration of a schedular TDIU under 38 C.F.R. § 4.16(a). The Veteran contends that his TDIU should be effective from November 17, 2004 (the effective date for the grant of service connection for PTSD). TDIU earlier effective date claims are not regulated by their own specific subsection of 38 C.F.R. § 3.400. Rather, TDIU claims are equivalent to increased rating earlier effective date claims, and thus are governed under 38 C.F.R. § 3.400 (o). See, e.g. Hurd v. West, 13 Vet. App. 449 (2000). In this case, the Veteran's disability rating for his service-connected disability does not meet the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a) at any point prior to its current effective date of January 14, 2013. As noted above, the Veteran does not have one disability ratable at 60 percent or more, or, at least one disability ratable at 40 percent or more with a combined disability rating of 70 percent prior to January 14, 2013. In exceptional cases, where the percentage threshold requirements for a schedular TDIU are not met, an extraschedular TDIU may be granted when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). However, the Board cannot assign a TDIU on an extraschedular basis in the first instance; instead, the RO must submit the claim to the Director, Compensation Service for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001); Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The evidence shows that the Veteran's service-connected PTSD manifested in such symptoms as severe avoidance, hallucinations, suicidal ideations, and a psychiatric hospitalization. An August 2006 VA mental heal psychological evaluation indicates that the Veteran was diagnosed with major depression, recurrent, PTSD, and cocaine dependence in remission, and was undergoing an evaluation for further diagnosis and management. The Veteran was noted to be appropriately dressed and groomed, alert, oriented, and cooperative. It was noted that he positioned himself with his face turned to the side, indicating he begins hallucinating if he sits face to face. The Veteran was noted to have a history of auditory and visual hallucinations which were treated with antipsychotic medications in the past and then treated with PTSD medications instead. The Veteran's wife reported the Veteran being more agitated and looking over his shoulder more often. It was noted that the Veteran had 13 years of school, was last employed in 2003 as a labor supervisor, and has taken substance abuse counselor training classes. It was noted that the results of this 3 hours evaluation were valid and that there were no attempts made to distort the psychological profile. The results were noted to be consistent with PTSD, severe anxiety disorder, major depression, and dysphemia. The Veteran was noted to have past and current stressors and be severely depressed and withdrawn. It was noted that the Veteran saw little hope for improvement with suicide being the only solution. It was noted that the Veteran had difficulty concentrating, making decisions, and that his preoccupations with anxiety likely impair his ability to think clearly. The Veteran was noted to be at risk for suicide, with routine screenings being recommended by the evaluator. A May 2011 VA examination report indicates that the Veteran had one psychiatric hospitalization in New York in 2004, following a suicide attempt, and has been receiving outpatient psychiatric care since. The Veteran reported his current symptoms being insomnia (reported as being fairly well controlled with medications), recurring dreams, avoidance, being unable to face people, anxiety, decreased motivation, decreased concentration, depression, and irritability. The Veteran reported difficulty finding work after discharge. It was noted that the Veteran was causally dressed, adequately groomed, and did not have an impairment of thought processes or communication. There were no delusions, but the Veteran reported auditory hallucinations. He also avoided eye contact and sat facing away from the examiner. As the record contains presence of the above-mentioned symptoms, the issue of assignment of a TDIU prior to January 14, 2013 on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) should be referred to the Director, Compensation Service for consideration of a TDIU. In this regard, the initial extraschedular referral to the Director under 38 C.F.R. § 4.16(b) addresses whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). The Director then performs his or her duties and, if the Director denies an extraschedular rating, the Board then, reviewing that decision without deference and bearing in mind the benefit of the doubt standard, decides whether the preponderance of the evidence nevertheless shows that a veteran is unemployable by reason of his or her service-connected disabilities. Ray at 66. As noted in Ray, the standard for determining whether referral is warranted is not as high as determining whether the Veteran's service-connected disabilities preclude all forms of gainful employment. The matter is REMANDED for the following action: Refer the claim of assignment of a TDIU prior to January 14, 2013 to the Director, Compensation Service for consideration of assignment of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.