Citation Nr: 21070991 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 18-46 424 DATE: November 29, 2021 ORDER Entitlement to an effective date earlier than July 24, 2015 for the award of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial 70 percent disability rating for service-connected PTSD is granted. REMANDED Entitlement to a disability rating in excess of 70 percent for service-connected PTSD is remanded. Entitlement to a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's claim for entitlement to service connection for PTSD was previously denied in a November 2007 rating decision; the Veteran did not appeal that decision in a timely manner, and it became final. 2. On July 24, 2015, the Veteran filed a new claim for service connection for PTSD; no communication from the Veteran were received following the rating decision in November 2007 and July 24, 2015 that may be construed as a claim for service connection for either disability. 3. The evidence is in favor of an initial 70 percent rating for the Veteran's PTSD due to symptoms more closely approximating occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 24, 2015 for the award of service connection for PTSD have not been satisfied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an initial 70 percent disability rating percent for service-connected PTSD have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1991 to April 1995. This matter comes before the Board of Veterans' Appeals (Board) from January 2017 and August 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing with the undersigned Veterans Law Judge in July 2020. A transcript of the hearing is of record. 1. An effective date earlier than July 24, 2015 for PTSD. The Veteran is currently service-connected for PTSD effective July 24, 2015. The Veteran asserts that the effective date should be the date of his initial claim for this disability in November 2006. For the reasons that follow, the Board finds that an effective date earlier than July 24, 2015, is not warranted. Generally, the effective date of an award of service connection is the date the claim was received, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The same is true for an award based on a claim reopened after final adjudication, as VA laws and regulations stipulate that the effective date of such an award shall be fixed in accordance with the facts found but shall not be earlier than the date the claim was received, or the date entitlement arose, whichever is later. See id.; 38 C.F.R. § 3.400(r). For purposes of this appeal, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). The mere presence of medical evidence does not establish an intent to seek service connection. See Brannon, supra (holding that the mere receipt of medical records could not be construed as an informal claim); see also Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006) ("[W]here there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised."). In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b) (2014). The date of a VA medical record will be accepted as the date of receipt of a claim when such record relates to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such record. 38 C.F.R. § 3.157(b) (2014). In other words, such records apply to claims for increased ratings, not initial claims for service connection. 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. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. The Veteran's service connection claim PTSD was denied in November 2007 on the basis that the evidence failed to show that such disability was incurred in or aggravated by service. The Veteran was notified of this decision and his appellate rights but did not submit any new and material evidence or a notice of disagreement within a year of the decision. Thus, the November 2007 decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In a July 24, 2015 VA Form 21-0966 Intent to File, as well as a July 20, 2016 VA Form 21-526EZ Fully Developed Claim, the Veteran stated that he wished to reopen his service connection claim. The Veteran underwent a VA examination for his PTSD in October 2016, where the examiners opined that his disability was etiologically related to his active service. Accordingly, in January 2017, the RO granted service connection for his PTSD effective July 24, 2015, the date of receipt of his intent to file. The Veteran appealed the effective date for the grant of service connection and this appeal ensued. In the present case, because of the prior final decision in November 2007, the claim by which the Veteran was granted service connection for PTSD was a claim to reopen a previously denied claim. The Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005). The evidence of record does not reflect any written communication from the Veteran prior to July 24, 2015 and after the previous final denial, that may be interpreted as a formal or informal claim to reopen the previously disallowed claims for service connection for PTSD. In fact, following the November 2007 rating decision the Veteran made no correspondence to VA addressing the issue of service connection for this disability. No correspondence was received pertaining to this disability until the respective filing of the current application to reopen the claim was received on July 24, 2015. Additionally, the earliest medical evidence of record showing a nexus between his tinnitus and low back disability, and service, was the medical opinion of the VA examiner in October 2016 after the current appeal was received. Therefore, the Board finds that the earliest effective date of service connection for PTSD is the current effective date of July 24, 2015. Effective dates for service connection are not based on the date the condition began and cannot be any earlier than date of receipt of claim to reopen. See, e.g., Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA"). Given the finality of the November 2007 rating decision, the law is clear that the effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(ii), (r). Accordingly, the Board concludes that June 14, 2011 is the proper effective date for the grants of service connection for the Veteran's PTSD, as that is the date of receipt of the application to reopen the claim for service connection following the prior final rating decision. 2. An initial rating in excess of 50 percent for PTSD. The Veteran's PTSD is evaluated as 50 percent disabling under Diagnostic Code 9411, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to suicidal ideation; obsessional rituals which interfere with routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Turning to the evidence during the appeal period, VA Mental Disorders examinations were afforded to the Veteran in November 2016 and July 2018. After interview and examination, the examiners opined that the Veteran's PTSD manifested, at most, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, judgement, thinking and/or mood, which the Board notes is the criteria for a 30 percent rating. 38 C.F.R. § 4.130. The Board finds, however, and after resolving all doubt in the Veteran's favor, that his symptoms during the period on appear have more nearly approximated occupational and social impairments with deficiencies in most areas, and that an initial 70 percent rating is warranted. Upon examination in 2016 and again in 2018, the Veteran's PTSD was noted to manifest symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and an inability to establish and maintain effective relationships. The Board also notes that his examinations note the Veteran reporting increased irritability and agitation, including his assertions that has been fired from multiple occupations due to physical and verbal altercations with employers. Further, although his examinations note passive suicidal ideation with no actual plan or intent, records reflect that the Veteran was hospitalized briefly in December 2015 due to reports of chronic suicidal ideation, the same year of his claim to reopen service connection for PTSD. VA treatment records around that time note audio hallucinations, as well as "significant symptomology" that includes intense anxiety, hypervigilance, and problems with concentration. See December 2015 Suicide Prevention Note; January 2016 Mental Health Outpatient Notes. Upon review, the Board finds that the evidence demonstrates a higher level of impairment attributable to the Veteran's PTSD. In that regard, the VA examiners, while opining that the Veteran's disability manifested no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, noted symptoms more closely approximating a 70 percent rating, such as suicidal ideation, impaired impulse control (such as unprovoked irritability with periods of violence), difficulty in adapting to stressful circumstances (including work or a worklike setting), and an inability to establish and maintain effective relationships. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board acknowledges that the Veteran reported to the undersigned during his hearing that his symptoms have worsened since his most recent VA examination. As such, the issue of entitlement to a rating in excess of the 70 percent rating the Board is granting herein is remanded for additional development, below. Accordingly, and after affording the Veteran the benefit of the doubt, the Board finds that a 70 percent disability rating is warranted from July 24, 2015, the date of his initial service connection claim. 38 C.F.R. §§ 4.3, 4.7, 4.130. REASONS FOR REMAND While the Board regrets further delay, the Veteran's remaining claims must be remanded for additional development. 1. Entitlement to a disability rating in excess of 70 percent for PTSD. As noted above, the Veteran has asserted that the symptoms of his PTSD have increased in severity since his last VA examination in 2018. As such, the matter of a rating in excess of 70 percent for PTSD must be remanded for a VA examination to determine the current nature and severity of the Veteran's PTSD. 2. Entitlement to a TDIU. With respect to the TDIU claim, the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim of entitlement to TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. During his hearing before the undersigned, the Veteran reported that he has been unable to obtain or maintain employment due to his service-connected PTSD. Although the Veteran did not submit a formal claim for TDIU, as the record suggests that his asserted unemployability may be related to his service-connected PTSD, the Board accordingly finds that the issue of entitlement to a TDIU is presently before it pursuant to the Court's holding in Rice and must be considered in the adjudication of this appeal. As the Veteran indicated that his unemployability was related to his PTSD, and because a decision on the increased rating claim could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU therefore is required. While on remand, the Veteran should be asked to submit a VA Form 21-8940, Application for a TDIU, or otherwise provide details of his employment history. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any outstanding treatment records relevant to his claims. All identified VA records should be added to the claims file, to include any new records dated since May 2020. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Send the Veteran a VA Form 21-8940 with instructions for completion, and then complete any additional evidentiary development necessary to adjudicate a claim for TDIU, to specifically include collecting and verifying information concerning the Veteran's complete educational history, occupational history, and wages received. 3. After the above development is completed, schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with his PTSD. The claims file should be reviewed by the examiner. To the extent possible, the examiner is asked to comment on any functional impairment resulting from service-connected PTSD that may affect employability. 4. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.