Citation Nr: A21017341 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 200518-75621 DATE: October 27, 2021 ORDER Entitlement to an effective date earlier than January 13, 2020 for the assignment of a 70 percent rating for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran filed an intent to file a claim which was received by VA on January 13, 2020. 2. The Veteran filed his claim for an increased rating for PTSD which was received within one year from his January 2020 intent to file a claim. 3. It was not factually ascertainable that the Veteran's PTSD increased in severity warranting a 70 percent rating within the year prior to the receipt of his January 13, 2020 intent to file a claim. CONCLUSION OF LAW The criteria for an effective date earlier than January 13, 2020 for the assignment of a 70 percent rating for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.157, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 2011 to June 2016. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the April 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.302(a). Earlier Effective Date Increased Rating for PTSD The Veteran asserts that an effective date earlier than January 13, 2020 is warranted for the grant of an increased 70 percent rating for his PTSD. Specific argument in support of this appeal has not been provided. For increased rating claims, 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)(2); 38 C.F.R. § 3.400(o). However, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (finding that a veteran's claim for increased disability compensation must have occurred during the one year prior to the date of the veteran's claim in order for the veteran to receive the benefit of an earlier effective date). If the increase occurred after the date of the claim, the effective date is the date of increase. 38 C.F.R. § 3.400(o)(2); Harper, 10 Vet. App. 126-27. The effective dates for "staged" ratings are established using the principle set forth at 38 C.F.R. § 3.400(o)(2), that is, the earliest date that it is factually ascertainable that the criteria for each disability rating were met. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). If a claimant wishes to obtain an effective date earlier than that assigned in a rating decision, the claimant must file a timely appeal to that decision or submit new and material evidence within the one year appeal period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302. Otherwise, the decision becomes final, and the only basis for challenging the effective date is a motion to revise the decision on the basis of clear and unmistakable error in the decision assigning the effective date or in a prior decision, the reversal of which would result in an earlier effective date. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.105, 20.1400. A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). An informal claim must identify the benefits sought; and 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 claimant, it will be considered filed as of the date of the receipt of the informal claim. Id. 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. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations apply to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA after March 24, 2015 date, the new regulations apply. Prior to March 24, 2015, a "claim" was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 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). The general rule for claims for increased ratings is that the award is effective the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date, otherwise, the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, supra, some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. Furthermore, the communication of an intent to file is important because VA may grant entitlement to benefits from an effective date prior to the date the claim was received as long as a complete claim is received within one year of receipt of the intent to file. When the complete claim is received within one year of the intent to file, the effective date rules may be applied based on the intent to file. 38 C.F.R. § 3.155. It is important to note that once VA associates a specific application for benefits with a communication of an intent to file, that intent to file is no longer active for the purpose of assigning an earlier effective date of entitlement for subsequent applications. In other word, once an intent to file is applied to a completed claim, it cannot be assigned to a subsequent claim. However, a claimant may submit another intent to file that VA will consider when assigning an effective date for which a subsequent claim may apply. When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). By way of background, the Veteran filed his original claim for entitlement to service connection for PTSD and other psychiatric disorders that was received by VA in November 2016. In a February 2017 legacy rating decision, the AOJ granted entitlement to service connection for PTSD, to include anxiety, depression and sleep disturbances, and assigned an initial 50 percent rating, effective November 10, 2016. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran filed claims for an increased rating in September 2017 and July 2018 that were denied by the AOJ in December 2017 and October 2018 legacy rating decisions respectively. The Veteran was provided notice of those decisions and his appellate rights but did not appeal the decisions or submit new and material evidence within one year of the decisions. Therefore, the decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Thereafter, as a result of the implementation of AMA, the procedural history is as follows. The Veteran filed a claim for an increased rating in March 2019 that was denied by the AOJ in a June 2019 AMA rating decision. The Veteran submitted a November 2019 VA Form 10182 Notice of Disagreement as to the June 2019 rating decision, and elected direct review to the Board. While his appeal of the June 2019 AMA rating decision was pending for review before the Board, the Veteran submitted an intent to file a claim for compensation that was received by VA in January 2020. This instant claim followed, and was received by VA in February 2020, within a year of his January 2020 intent to file a claim. In the March 2020 AMA rating decision currently on appeal before the Board, and subject to this Board decision, the AOJ granted entitlement to a 70 percent rating for his PTSD, and assigned an effective date of January 13, 2020, the date VA received his intent to file a claim for compensation. The Veteran submitted his April 2020 VA Form 10182 Notice of Disagreement as to the effective date assigned for the 70 percent rating for PTSD. In a May 2020 Board decision, the Board denied his claim for an increased rating for PTSD in excess of 50 percent, which was decided in the June 2019 AMA rating decision. The Veteran did not appeal that decision. Board decision are final when issued. 38 U.S.C. § 7104. These basic facts are not in dispute. The Veteran has not alleged, and the record does not suggest, that a claim for increase was filed prior to his intent to file a claim that was received by VA on January 13, 2020. The Board finds that the record fails to demonstrate a factually ascertainable increase in the severity of the Veteran's PTSD within the year prior to January 13, 2020 so as to warrant a 70 percent rating. Specifically, a May 2019 VA examination report fails to demonstrate such an increase. The May 2019 VA examiner found that the Veteran's psychiatric symptoms manifested in a mental condition that had been formally diagnosed, but symptoms were not severe enough to either interfere with occupational and social functioning or to require continuous medication. At that time, the Veteran reported he was married, his daughter was born in January 2019, and that his marriage was "good." He reported that he lived with his wife and child, that he stayed in contact with his military friends, and that he socialized with his in-laws, wife's friends, and brother-in-law. He made music. The Veteran reported that he was working full-time and was paid well, and had worked at his job since December 2018 without any disciplinary issues. He was also taking classes. He denied taking any psychotropic medications since separation from active service, and had finished probation in 2017. He denied drinking excessively, and denied using any other substances. The Veteran reported psychiatric symptoms in May 2019 that included depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impaired judgment, disturbances of motivation and mood and difficulty in adapting to stressful circumstances, including work or a worklike setting. Behavioral observations showed the Veteran appeared the staged age, that he drove himself to the examination, that he had fair hygiene, that he had fair contact, that he had appropriate facial expression and that he was cooperative with a serious attitude. No vocal or motor abnormalities noted, psychomotor function was within normal limits, stream of mental activity was within normal limits; association of thought was within normal limits, articulation was clear, velocity and volume were normal, quantity of speech was appropriate, thought content was appropriate, no evidence of delusional thinking was noted and reality contact appeared intact. The examiner note that the Veteran did not appear to be responding to internal stimuli, his mood was good, his affect was appropriate to content, his sleep was fair, his appetite was fair and denied suicidal ideation. He was found to be oriented to all three spheres, person, place and time. intellectual functioning appeared to be within the average rage and memory appeared intact. His judgment and insight were within normal limits. The Board notes that the AOJ assigned a 70 percent rating based on the results contained within a March 2020 VA examination report. At that time, the March 2020 VA examiner opined the Veteran's psychiatric symptoms manifested in occupational and social impairment with deficiencies in most areas. At that time, the Veteran reported he was currently divorcing his third wife, was homeless, and endorsed morbid thoughts of death without plan or intent. Based on the foregoing, the Board finds that it had not become factually ascertainable that the Veteran's PTSD had increased in severity to warrant a 70 percent rating prior to January 13, 2020. Upon review of the record, no formal or informal claim for an increased rating for the Veteran's PTSD was received between the issuance of the June 2019 rating decision and prior to his January 13, 2020 intent to file a claim nor is it factually ascertainable that an increase in disability occurred in the year prior to January 13, 2020. See 38 C.F.R. §§ 3.151, 3.155, 3.157; Massie v. Shinseki, supra. In this regard, prior to January 13, 2020, the Veteran's social impairment was minimal, as he was married with a new daughter, working full time, socializing regularly, and taking classes. Additionally, the AOJ and May 2020 Board decision found that the Veteran's psychiatric symptoms did not rise to the severity to more closely approximate social and occupational impairment with deficiencies in most areas based on evidence of record at that time. However, beginning on January 13, 2020, it was factually ascertainable that his psychiatric symptoms had worsened resulting in more significant social and occupational impairment demonstrated by his divorce, homelessness, and thoughts of death. Therefore, an earlier effective date for the award of a 70 percent rating for PTSD is not warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an effective date earlier than January 13, 2020 for the assignment of a 70 percent rating for PTSD is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.