Citation Nr: 21075465 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-27 530 DATE: December 20, 2021 ORDER Entitlement to an earlier effective date of February 1, 2012, for the 100 percent rating for posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT A February 1, 2012 treatment record is the earliest evidence showing a 100 percent level for PTSD. CONCLUSION OF LAW The criteria for an earlier effective date of February 1, 2012, for the 100 percent rating for PTSD have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.157, 3.400, 4.114 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1998 to December 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied this claim. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2019 Order, the Court vacated the Board's decision and remanded it to the Board for readjudication. In a June 2020 decision, the Board granted an earlier effective date. However, the Veteran again appealed the Board's decision to the Court. In a March 2021 Order, the Court vacated the Board's decision and again remanded it to the Board for readjudication. Entitlement to an earlier effective date of February 1, 2012, for the 100 percent rating for posttraumatic stress disorder (PTSD) The Veteran asserts that he is entitled to an effective date prior to March 19, 2014, for his 100 percent rating for PTSD. An effective date for increased disability 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. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). "[A]n increase in a veteran's service-connected disability must have occurred during the one year period prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date." Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (discussing 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2)). If the increase in disability is shown to have occurred after the date of claim, the effective date is the date of increase. See 38 U.S.C. § 5110 (b) (2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1); VAOPGCPREC 12-98 (1998). Prior to March 24, 2015, according to 38 C.F.R. § 3.157 (b), once a claim for compensation was allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital would be accepted as an informal claim for increased benefits. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157 (b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. Id. at (b)(2). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). In this case, the Board finds that an earlier effective date is warranted. The Veteran filed an original claim of service connection in December 2011, which was granted in a March 2012 rating decision. At that time the RO assigned a 70 percent disability rating. In May 2012, the Veteran submitted a statement in which he requested a temporary 100 percent rating based on attending a PTSD residency program at the Bay Pines VA Medical Center. In August 2012, the RO obtained a June 2012 VA discharge summary from the PTSD Residential Program. In a June 2012 VA opinion, the examiner determined the impact the Veteran's PTSD had on his ability to work. In a September 2012 rating decision, the Veteran was awarded a 100 percent rating for his PTSD due to hospitalization from April 16, 2012. This 100 percent rating ended on July 1, 2012, with the previously assigned 70 percent rating remaining in effect from that point. The decision did not specifically discuss entitlement to a rating higher than 70 percent during the period of time before or after the temporary total rating was assigned other than a notation on the codesheet stated that "An evaluation of 70 percent is assigned from July 1, 2012." It was also stated on the codesheet that individual unemployability was denied as "The examiner stated that your PTSD symptoms seem to be responding to treatment and that you are not totally impaired and unable to work due to PTSD, only suffering reduced reliability and productivity." Notice of this rating was provided to the Veteran in a letter dated September 29, 2012. In March 2013, the Veteran submitted a written statement asserting that he had developed secondary conditions as a result of his PTSD. Subsequently, in April 2013, the Veteran's representative submitted correspondence requesting that the pending claim be amended to include a claim for an increased rating for PTSD. In May 2013 and July 2013, the RO received additional VA treatment records. The Veteran filed a claim for increase in September 2014. In a January 2015 rating decision, the Veteran was awarded a 100 percent rating for his PTSD from September 15, 2014. This effective date was changed to March 19, 2014, in an August 2020 rating decision. The Board notes that new evidence was received by VA within one year of the issuance of the March 2012 decision and the September 2012 rating decisions, and consistently thereafter leading up to his formal claims for increase in April 2013 and September 2014. Therefore, the rating decisions never became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that these earlier VA medical records warrant an earlier effective date for the assignment of a 100 percent rating. Specifically, in a February 2012 treatment record, it was noted that the Veteran was being treated as an outpatient but that his physician had put in applications for two residential programs for more intensive treatment of his PTSD. The Veteran had recently gone on several job interviews, but he was unable to complete the interviews due to his psychiatric symptoms. In a March 2012 VA examination, the Veteran said he was laid off from a security job in March 2011 after 2 years. He said that he did some banquet work, but that was not working due to his migraines and depression. It was noted that the Veteran was hospitalized in September 2011 due to suicidal ideation with intention. During the examination, the examiner noted that the Veteran was anxious and felt nauseous; he was tearful, speech pressured, thought process mildly tangential, and had some difficulty staying on task to answer the examiner's questions. Upon discharge from hospitalization for PTSD in June 2012, it was noted that the Veteran had been using alcohol to deal with symptoms and had been increasingly isolated from most social and interpersonal contact outside of the home. The Veteran had complaints of PTSD including social isolation, fear of crowds, hypervigilance, panic attacks, feelings of hostility, and severe difficulties with intimacy. He struggled with close intimate relationships. In a May 2013 VA treatment record, the Veteran said that he was not ready to pursue work due to his physical and psychological problems. Generally, the VA medical records for this time period, such as the May 2013 treatment record, reflect his report of psychological problems with only generalized non-specific reports. There were no specific findings consistent with a "report of examination" for this disability indicating findings pertaining to the foot and that it had worsened. See Massie, 724 F.3d 1328 -29. The February 2012 treatment record, however, meets this standard. It reflects an evaluation of the Veteran's PTSD, including findings that he needed more intensive treatment of his PTSD, and had been unable to complete job interviews due to his symptoms. A March 2012 VA examination and June 2012 discharge summary reflects a similar assessment. It is factually ascertainable from the February 2012 treatment record that his condition had worsened because the provider gave specific findings consistent with a 100 percent rating under the rating schedule. See 38 C.F.R. § 4.71a, Diagnostic Code 9411. It is not factually ascertainable that the Veteran met the increased disability level prior to the February 2012 treatment record. A September 2011 treatment record showed that the Veteran was seen for his PTSD. However, it did not note specific findings as to the disability level. Lacking such specificity, it would only be speculation to determine that the worsening had occurred at that point. Hence, the earliest that that it can be factually ascertained that he met the criteria for a 100 percent rating is February 2, 2012, the date it was suggested he be referred for intensive treatment for his PTSD and was unable to complete his job interviews. The Board acknowledges that there is evidence that the Veteran was hospitalized for his PTSD in September 2011, prior to the formal filing of a claim for service connection in December 2011. However, there is no consistent evidence until February 2012 to suggest that the Veteran's PTSD would warrant a 100 percent disability rating. In summary, the Board finds, after resolving all reasonable doubt in the Veteran's favor, that an effective date of February 2, 2012, is warranted for the award of a 100 percent disability rating for the Veteran's PTSD. The appeal is granted to this extent. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, Saudiee 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.