Citation Nr: 21067469 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-46 781 DATE: November 4, 2021 ORDER Entitlement to an effective date earlier than June 11, 2015, for the assignment of 70 percent rating for posttraumatic stress disorder (PTSD) with depression and alcohol abuse is denied. FINDING OF FACT At the time of the June 11, 2015 routine VA examination, there were no pending or otherwise unadjudicated claims for entitlement to increased rating for PTSD. CONCLUSION OF LAW The criteria for an effective date prior to June 11, 2015, for the assignment of 70 percent rating for PTSD have not 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 from December 1988 to December 2007. In July 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Entitlement to an effective date earlier than June 11, 2015, for the award of 70 percent rating for PTSD with depression and alcohol abuse The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation 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 the latter. 38 C.F.R. § 3.400. For a claim for increased rating, if the increase is factually ascertainable within one year prior to the receipt of the claim, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to receipt of the claim, the increase will be effective on the date of claim. Further, if the increase occurred after the date of claim, the effective date will be the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12- 98 (1998). 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. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant's 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 claimant, 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). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Analysis The Veteran asserts that he is entitled to an effective date earlier than July 11, 2015, for the assignment of 70 percent rating for service-connected PTSD. In an April 2008 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to service connection for PTSD and assigned a 50 percent rating effective January 1, 2008. The Veteran did not disagree with the April 2008 rating decision, and no new and material evidence was received within the year following the rating decision. Therefore, the April 2008 decision became final. 38 U.S.C. § 7105(b); 38 C.F.R. § 3.104. In March 2013, the Veteran filed a claim for increased rating for PTSD. In September 2013, the AOJ denied the claim. The Veteran did not disagree with the denial, and no new and material evidence was received within the year following the rating decision. As such, the decision became final. Id. In March 2015, the AOJ requested a "routine future and at once future examination" to determine the severity of the Veteran's PTSD. In June 11, 2015, the Veteran was afforded a VA examination to determine the severity of his PTSD. The examiner noted that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran's PTSD symptoms included depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impaired judgment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. In a June 18, 2015 rating decision, the AOJ awarded a 70 percent rating effective June 11, 2015, the date the medical evidence showing an increased was warranted. The Veteran appealed. During his July 2021 Board hearing, the Veteran disagreed with the effective date for the assignment of the 70 percent increased evaluation. The Veteran stated that at the time of the original grant of service connection, he was unaware that he could appeal the assigned rating. He further stated that there was no one to explain how the system worked, so he felt cheated through the VA system. The Veteran stated had he known about the process, he would have started the process much earlier. Additionally, when PTSD was originally granted, he had gone through a divorce, him and his wife reconciled, then, his wife died. He stated that he was not in the right frame of mind. Because the September 2013 rating decision for PTSD became final, the effective date for an increased rating is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). After review of all the lay and medical evidence, the Board finds that the Veteran's June 2015 VA examination, which first documented occupational and social impairment with deficiencies in most areas, was the earliest communication which provided evidence that a 70 percent rating was warranted. The Board notes that the Veteran did not submit a formal or informal claim for an increased rating for PTSD. Instead, the AOJ requested a "routine future and at once future examination" to determine the severity of the Veteran's PTSD. Additionally, the file contains no documents that could be construed as an informal or formal claim for increased rating for PTSD. As such, the Board finds that it was first ascertainable in June 2015, that a 70 percent rating was warranted. During his Board hearing, the Veteran stated that he was unaware that he could appeal the assigned rating. While the Board is sympathetic to his testimony, the April 2008 Notification letter stated, "If you do not agree with our decision, you should write and tell us why. You have one year from the date of this letter to appeal the decision. The enclosed VA Form 4107, "Your Rights to Appeal Our Decision," explains your right to appeal." As such, the Board finds that the Veteran knew or should have known of the requirements needed to appeal the decision. As the Veteran did not disagree with the April 2008 rating decision, and no new and material evidence was received within the year following the rating decision, the April 2008 decision became final. 38 U.S.C. § 7105(b); 38 C.F.R. § 3.104. Therefore, the assignment of a 70 percent rating for PTSD cannot relate back to that date. As noted above, an earlier effective date may be warranted if there was a factually ascertainable increase in disability in the one-year period prior to the date the claim was received. In this instance, the appeal arose not from a claim filed by the Veteran, but rather by a routine examination scheduled by the RO. Nevertheless, the Board finds that the weight of the evidence does not show that an increase occurred in the Veteran's disability during the one-year period prior to the effective date assigned. The Veteran's PTSD is rated under DC 9411. Prior to June 11, 2015, the Veteran's treatment records do not document treatment for PTSD. Therefore, the appropriate effective date for the award of the increased evaluation for PTSD is June 11, 2015. See 38 C.F.R. § 3.400(o)(1)(2). For the reasons discussed above, the Board finds that the preponderance of the evidence is against the Veteran's claim. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Tara-Deen 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.