Citation Nr: 21068502 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-11 900 DATE: November 10, 2021 ORDER Entitlement to an effective date of February 11, 2014 for the 70 percent evaluation for service-connected posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. A March 2004 rating decision granted service connection for a mood disorder with a 10 percent evaluation effective March 4, 2004. The Veteran did not file a notice of disagreement within one year of that decision, and it became final. He filed a new claim in 2012 for an increase in his psychiatric disorder, and an August 2013 rating decision continued the 10 percent rating. The Veteran did not file a notice of disagreement within one year of that decision, and it became final. 2. The Veteran's claim for an increased rating for psychiatric disorder/PTSD was received on February 11, 2015. An increase in his PTSD disability is factually ascertainable within the one-year period prior to that claim being filed, specifically, as of February 11, 2014, but no earlier. CONCLUSION OF LAW 1. The 2004 and 2013 rating decisions denying an increased disability rating for a mood disorder are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria for an effective date of February 11, 2014, but no earlier, for the assignment of a 70 percent evaluation for PTSD have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had service from July 2000 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision (RD) issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a hearing in September 2021 before the undersigned Veterans Law Judge. The transcript from the hearing has not yet been associated with the file, as the case is being granted under the Board's "One Touch" program. The hearing transcript will still be processed and associated with the claims file in the ordinary course of business. The Veteran contends that he is entitled to an earlier effective date prior to February 11, 2015 for the grant of the increased 70 percent evaluation for his service-connected PTSD disability. The effective date for an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o); see Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98, 63 Fed. Reg. 56704 (1998). "It is clear from the plain language of 38 U.S.C. § 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). VA regulations also 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. See 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. See 38 C.F.R. § 3.1(r). Here, by way of history, a March 2004 rating decision granted service connection for a mood disorder with a 10 percent evaluation, effective March 4, 2004. The Veteran did not appeal that decision and it became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Thereafter, he filed a new claim in 2012 for an increase in his psychiatric disorder, and an August 2013 rating decision continued the 10 percent rating. The Veteran did not file a notice of disagreement within one year of that decision, and it became final. As the March 2004 and August 2013 rating decisions are final, the effective date for any later increase in the 70 percent rating for the Veteran's service-connected PTSD must be determined in relation to an increased rating claim. On February 11, 2015, the Veteran filed a claim for increased rating for his service-connected mood disorder. Based on the Veteran's claim and a May 2015 VA PTSD Examination (which confirmed a diagnosis for PTSD), a May 2015 rating decision granted a rating of 70 percent for the Veteran's PTSD, effective February 11, 2015, the date of the Veteran's increased rating claim. Upon review of the record for the period on appeal, to include the one-year period prior to the Veteran's February 11, 2015 increased rating claim, the Board finds the preponderance of the evidence reveals that an earlier effective date for the award of the 70 percent increased rating for the Veteran's PTSD is warranted. Specifically, relative to the Veteran's February 2015 claim for an increased rating, an increase in that disability is factually ascertainable within the one year look back period, as the Veteran's private and VA treatment records indicate that the Veteran was receiving mental health treatment, as well as received an updated diagnosis for PTSD and depressive disorder via a private psychiatric evaluation in 2011. His private doctor also provided a statement from November 2014 that the Veteran had been seen by him monthly since service for his PTSD and discussed the daily complications. Thus, as the Veteran's medical treatment records clearly reveal increased PTSD symptomatology prior to February 11, 2015, the Board finds that the appropriate effective date for the award of the increased 70 percent disability rating is one-year prior to the date of his increased rating claim for a new effective date of February 11, 2014, but no earlier. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(0)(2). He and his attorney indicated at the hearing that such a date would fully satisfy his appeal. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.