Citation Nr: 21068183 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-58 036 DATE: November 9, 2021 ORDER An effective date earlier than August 21, 2015 for the grant of service connection for PTSD is denied. FINDINGS OF FACT The Veteran was discharged from military service on June 29, 1971 and service connection for PTSD has been established effective August 21, 2015, which is the earliest effective date possible CONCLUSION OF LAW The criteria for an effective date prior to August 21, 2015, for the award of service connection for PTSD have not been met. 38 U.S.C. §§ 5101, 5110, 5111; 38 C.F.R. §§ 3.151, 3.155, 3.400. REMANDED Entitlement to service connection for depression and anxiety disorders, to include as secondary to PTSD, is remanded. Entitlement to an increased rating for PTSD is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1966 to November 1966, and from December 1969 to June 1971. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office. In July 2021, the Veteran testified before the undersigned Veterans Law Judge at a Virtual Hearing; a transcript is of record. 1. An effective date earlier than August 21, 2015 for the grant of service connection for PTSD The Veteran contends that he is entitled to an earlier effective date for his service-connected PTSD. See Board Hearing Transcript, pg. 11. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. VA regulations provide that the terms "claim" and "application" mean 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). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The Board, however, is not required to conjure up issues that were not raised by an appellant. See Brannon v. West, 12 Vet. App. 32 (1998). Prior to the March 24, 2015 amendment, VA accepted both formal and informal claims. An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). 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). A review of the record shows that the Veteran submitted an initial claim for service connection for his disabilities in August 2015. See VA Form21-426EZ, Application for Disability Compensation and Related Compensation Benefits, dated August 12, 2015, received August 21, 2015. The Board notes that this initial claim was for anxiety and depression, and in December 2015, he revised his claim to add an acquired mental condition, to include PTSD. The Board also notes that when the Veteran filed an increased rating claim for his service-connected PTSD, he expressly indicated in writing that the effective date of the increased rating should be the date of filing his PTSD claim. See March 2016 Notice of Disagreement, pg. 3. Although the Veteran reports that he has been experiencing PTSD symptoms prior to the August 21, 2015 effective date, this is insufficient to establish that he is entitled to an earlier effective date under VA's governing laws and regulations. There are no records in his claims file which indicate an intent to file for compensation for PTSD prior to August 2015. The Board notes that in July 1998, the Veteran requested that the VA send him all the proper forms so he "could resolve this matter." See July 1998 Correspondence. He stated that he was incarcerated and unable to appear in person to register for his VA benefits. Id. The Veteran contends VA did not assist him in filing a claim for PTSD. The Veteran had previously been corresponding with VA since March 1974 regarding receiving work-related training benefits, tuition, and apprenticeship training benefits. However, the documentation does not indicate what benefits the Veteran was discussing, and none of the documents mention service connection, disabilities, or PTSD. Therefore, the Board finds it does not meet the criteria of evidence of an intent to file, or an application for service connection for PTSD prior to August 21, 2015. Finally, to the extent that the Veteran contends that VA did not allow or assist him in filing a claim for PTSD earlier, his statement lacks credibility as he was able to file for other benefits as noted above, and showed no intent to file for PTSD earlier than August 21, 2015. In this regard, the effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). Further, the Veteran's attorney has not provided any argument or pointed to any law or regulation that would afford the Veteran an effective date earlier than the day after he was discharged from service. In other words, there is no legal basis to award earlier effective dates. As above, the earliest effective the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Therefore, based on the above-stated facts and regulations, the Board finds that the legally correct date for the award of service connection for PTSD is August 21, 2015, the date of receipt of the claim. As such, the Veteran is not entitled to an earlier effective date and his claim must be denied. REASONS FOR REMAND 1. Entitlement to an increased rating for PTSD is remanded. The Veteran contends that this PTSD is more severe than his current evaluation. See Board Hearing Transcript, pg. 3; see also March 2016 Notice of Disagreement (requesting a 100 percent rating for PTSD). His PTSD is currently rated at 50 percent disabling. In July 2021, the Veteran and his representative indicated that his symptoms have worsened since his last VA examination. The Veteran's last VA examination was in January 2016. The fact that a VA examination is more than 5 years old is not a valid basis, by itself, to provide another VA examination. However, the Veteran and his attorney have asserted that his PTSD has worsened since his examination in 2016 and he provided testimony as to worsening symptoms. Therefore, a new VA examination is needed to assist in determining the current severity of his PTSD. 2. Entitlement to service connection for depression and anxiety disorders, to include as secondary to PTSD The Veteran contends that his depression and anxiety disorders are related to service, to include as secondary to his service-connected PTSD. The Veteran underwent a VA examination in January 2016. The examiner was not directed to address depression and anxiety, or whether there were acquired psychiatric disorders that were caused or aggravated by his PTSD. Although the VA examiner did not indicate that the Veteran was diagnosed with depression or anxiety, the Board notes that medical records indicate that he was diagnosed with major depression by Dr. S.G.S. See VA Treatment Records (CAPRI), dated March 9, 2016. Other records indicate that his depression was present in December 2015. See Mental Status Examination by Dr. S.G.S., dated December 7, 2015. It is unclear whether the Veteran's depression and anxiety are part and parcel of the service-connected PTSD or separate mental health disorders. A remand is needed to obtain a new examination regarding service connection for depression and/or anxiety. 3. Total Disability Based on Individual Unemployability (TDIU) The Veteran testified that he has not been able to engage in normal activities of daily living or leave his house because of his depression and PTSD disabilities. See Board Hearing Transcript, pg. 7. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. TDIU can either overtly stated or implied by a fair reading of the claim or of the evidence of record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In this case, the record shows that the Veteran has not independently or separately asserted entitlement to TDIU. But the Board finds that there is sufficient evidence in the record that raise the issue of implied TDIU. Thus, the Board finds that an implied TDIU claim has been reasonably raised by the record and is before the Board as part and parcel to the initial increased rating issues. Rice, 22 Vet. App. at 447. Because a decision on the remanded issues of increased rating for PTSD, and service connection for depression and anxiety disorders, could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. The matters are REMANDED for the following action: 1. Request the Veteran complete and submit a VA for 21-8940 (application for a TDIU). 2. Obtain all outstanding VA treatment records and associate them with the claims file. 3. Thereafter, schedule the Veteran for new examination to determine the current severity of his PTSD. 4. Schedule the Veteran for a new examination to determine and the nature and etiology of any acquired psychiatric disorders, to include depression and anxiety, and answer the following: a) Identify all diagnosed acquired psychiatric disorders b) For each disorder diagnosed, provide an opinion as to whether it is at least likely as not (50 percent possibility or greater) that any acquired psychiatric disorder is related to service. c) For each disorder diagnosed, provide an opinion as to whether it is at least likely as not (50 percent possibility or greater) any acquired psychiatric disorder is secondary to, which includes caused or aggravated by, his service-connected PTSD. d) If the examiner finds that the Veteran's depression and anxiety are part of his PTSD, the examiner is asked to so state. 5. Readjudicate the claim, to include TDIU. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.