Citation Nr: 21075990 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-23 052 DATE: December 22, 2021 ORDER An effective date earlier than August 14, 2012, for the award of a 70 percent rating for posttraumatic stress disorder (PTSD) is denied. An effective date earlier than August 14, 2012, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. An effective date earlier than August 14, 2012, for the establishment of basic eligibility for Dependents' Educational Assistance (DEA) is denied. FINDINGS OF FACT 1. After withdrawal of a prior appeal in March 2012, the Veteran submitted a claim for an increased rating for PTSD on August 14, 2012; and a 70 percent severity level was not first factually ascertainable within one year prior to the claim. 2. An informal claim for a TDIU was inferred as part and parcel of the underlying claim for an increased rating for PTSD received on August 14, 2012; and unemployability was not first shown within one year prior to the date of claim. 3. The Veteran did not have a permanent and total rating prior to August 14, 2012. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 14, 2012, for the award of a 70 percent rating for PTSD are not met. 38 U.S.C. §§ 1155, 5107, 5110, 7105; 38 C.F.R. §§ 3.1(p), 3.155, 3.157, 3.400, 4.3, 4.130, 19.55 (2014 & 2021). 2. The criteria for an effective date earlier than August 14, 2012, for the award of a TDIU are not met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.3, 4.16. 3. The criteria for an earlier effective date than August 14, 2012, for basic eligibility for DEA are not met. 38 U.S.C. §§ 1155, 3501; 38 C.F.R. §§ 3.400, 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1965 to December 1967. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from February 2014 and March 2017 rating decisions of a Department of Veterans' Affairs (VA) Regional Office (RO). The 2014 decision granted a 50 percent rating for PTSD, effective January 1, 2013; and after receipt of a notice of disagreement, the 2017 rating decision further increased the rating for PTSD to 70 percent, effective August 14, 2012, and also granted a TDIU and DEA, both effective August 14, 2012. The Veteran then submitted another notice of disagreement in May 2017 as to the assigned effective dates, leading to this appeal. In January 2019, the Board remanded the issue of entitlement to a rating greater than 70 percent for PTSD. In March 2020, the Board issued a decision denying a rating greater than 70 percent for PTSD, denying an effective date earlier than August 14, 2012, for the award of a TDIU, and denying an effective date earlier than August 14, 2012, for establishment of basic eligibility for DEA benefits. In November 2020, the Veteran's attorney filed amotion for reconsideration of the Board's March 2020 decision on the basis that the Board failed to address whether an effective date earlier than August 14, 2012, was warranted for the assignment of a 70 percent rating for PTSD. In March 2021, the Board vacated its prior decision from March 2020. In June 2021, the Board issued a decision that denied a rating greater than 70 percent for PTSD since August 14, 2012, but remanded the issue of entitlement to an effective date prior to August14, 2012, for the award of a 70 percent rating for PTSD for issuance of a statement of the case (SOC). The Board also remanded the issues of entitlement to an effective date prior to August 14, 2012, for the award of a TDIU and establishment of basic eligibility for DEA benefits, as those issues were inextricably intertwined with the issue of an effective date prior to August 14, 2012, for the award of a 70 percent rating for PTSD. In September 2021, an SOC was provided for the issue of an effective date earlier than August 14, 2012, for the assignment of a 70 percent rating for PTSD. In November 2021, the Veteran (through his attorney) filed a timely substantive appeal (VA Form 9). All three issues have now returned to the Board, and they have been merged into the earlier docket date to be addressed together at this time. Effective Dates For the issues below, the Veteran (through his attorney) contends that a 70 percent rating for PTSD should be granted from an earlier date based on an informal claim from VA treatment records under former 38 C.F.R. § 3.157(b), and the doctrine of constructive receipt of VA records. He asserts that the Veteran had several periods of inpatient treatment with temporary total rating periods, but was then returned to the prior (initial) 30 percent rating in effect since December 12, 2007. In particular, the Veteran points to several VA treatment records dated from July 29, 2008, through April 27, 2011, as showing severe or serious symptoms to warrant a 70 percent rating. He has a service-connected mental health disability of PTSD and a nonservice-connected disability of schizophrenia. However, the Veteran asserts that because was hospitalized three times between 2009 and 2012, and he was awarded temporary total benefits from VA for each hospitalization, his impairment due to service-connected PTSD was severe. The Veteran further contends that a TDIU and associated basic entitlement to DEA benefits should be granted as of the same earlier date based on his PTSD rendering him unemployable, under a schedular or extraschedular basis under 38 C.F.R. 4.16(b). See, e.g., February 2015 notice of disagreement, May 2017 notice of disagreement, December 2018 correspondence, August 2019 VA Form 9, November 2021 VA Form 9. 1. An effective date earlier than August 14, 2012, for the award of a 70 percent rating for PTSD Unless specifically provided otherwise in applicable law, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application for said benefits. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If an increase in disability level was factually ascertainable within one year prior to receipt of the increased rating claim, then the effective date will be the date on which that increase is shown to have occurred; otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). During the pendency of this appeal, effective prior to March 24, 2015, VA recognized formal and informal claims. A claim was defined as 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) (2014). An informal claim was any communication or action indicating intent to apply for one or more benefits, and it must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). VA must look to all communications from a claimant that may be interpreted as applications or claims for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In effect prior to March 24, 2015, 38 C.F.R. § 3.157 provided that VA would recognize an informal claim based on information in treatment records under certain circumstances. Once a formal claim for pension or compensation was allowed or a formal claim for compensation disallowed for the reason that the service-connected disability was not compensable in degree, receipt of one of the following would be accepted as an informal claim for increased benefits or an informal claim to reopen. As relevant to this case, the date of VA outpatient treatment or hospital examination or admission was accepted as the date of receipt of a claim when such reports related to the examination or treatment of a disability for which service-connection had previously been established, or when a claim specifying the benefit sought was received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157(a), (b)(1) (2014). As noted in the rulemaking that eliminated § 3.157, this regulation provided for the "constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase or to reopen." 79 Fed. Reg. 57660, 57661 (Sept. 25, 2014); see also Pacheco v. Gibson, 27 Vet. App. 21, 24-30 (2014) (en banc) (concerning when treatment records may constitute a claim to reopen); Massie v. Shinseki, 25 Vet. App. 123 (2011), aff'd, 724 F.3d 1325 (Fed. Cir. 2013) (concerning when treatment records may constitute a claim for an increase). VA may be charged with constructive possession and knowledge of VA medical records generated prior to its decision in a claim decided after 1992. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam order); Damrel v. Brown, 6 Vet. App. 242, 246 (1994); but see Turner v. Shulkin, 29 Vet. App. 207 (2018) (clarifying that a VA Regional Office must have sufficient knowledge of the existence of VA treatment records to trigger constructive receipt of such records). VA's schedular percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages, then whether the associated symptoms cause the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 70 percent rating is assigned when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and 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 worklike setting); or inability to establish and maintain effective relationships. In this case, a claim for an increased rating is not established prior to August 14, 2012, to include under former section 3.157(b), because the Veteran withdrew his prior appeal that had considered his records, rendering the prior decision final. Specifically, a May 2008 rating decision granted service connection for PTSD, and assigned an initial 10 percent rating, effective December 12, 2007. The Veteran initiated an appeal from that rating, and a statement of the case (SOC) was issued in January 2011. The Veteran, through his prior appointed representative, then submitted a substantive appeal (in lieu of a VA Form 9) in February 2011. On March 15, 2012, and March 16, 2012, respectively, notice of a rating decision and supplemental statement of the case (SSOC) this issue were mailed to the Veteran and his representative. This rating decision and SSOC stated that the evaluation for PTSD was increased from 10 to 30 percent, effective December 12, 2007; a temporary 100 percent rating was assigned from August 4, 2009, based on hospitalization; the rating returned to 30 percent effective September 1, 2009; another 100 percent evaluation was assigned from November 12, 2009, based on hospitalization; and the rating returned to 30 percent effective February 1, 2010. The increase of the initial 30 percent rating and periods of temporary total ratings were based on records of VA treatment, including inpatient treatment, and the 2012 rating decision reflected consideration of the Veteran's treatment from 2008 through 2011, as identified in the attorney's arguments as summarized above. Shortly afterward, on March 21, 2012, the Veteran and his prior appointed representative both submitted a statement clearly requesting to withdraw his appeal for an increased rating for his service-connected PTSD. At the time this withdrawal was submitted, as well as currently, an appeal may be withdrawn by the appellant or his or her authorized representative as to any or all issues involved in the appeal at any time before the Board promulgates a decision. See 38 U.S.C. § 7105(b); 38 C.F.R. § 20.204 (2011) and § 19.55 (2021). A written withdrawal must include the name of the Veteran, the VA file number, and a statement that the appeal is withdrawn. Id. An appeal withdrawal is effective when received, and it will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. Id. There is no argument or suggestion that the March 21, 2012, written withdrawals of the appeal by the Veteran and his representative were invalid. Therefore, the March 2012 rating decision, including the assignment of a 30 percent rating for PTSD before and after the periods of temporary total disability, became final. Subsequently, on August 14, 2012, the Veteran submitted his informal claim for an increased rating for his PTSD that led to the current appeal. He identified VA treatment, including upcoming inpatient treatment due to his PTSD. VA treatment records reflect inpatient psychiatric treatment beginning October 17, 2012, for which he was granted a temporary total rating through December 31, 2012. Accordingly, because there was a valid withdrawal of the prior appeal on March 21, 2012, the effective date can be no earlier than the date of receipt of his claim for an increased rating, or up to one year prior to that date if the disability severity first reached the 70 percent level during that period under 38 C.F.R. § 3.400(o)(2). The Veteran did not first have factually ascertainable social and occupational impairment in most areas due symptoms of a similar nature, frequency or severity as contemplated by the 70 percent rating within one year prior to August 14, 2012. As noted above, the Veteran's contentions are based on him having symptoms that support a 70 percent rating from 2008 to 2011, including the periods of VA inpatient treatment for which he was awarded temporary total ratings. Review of the lay and medical records, including VA examinations in June 2011 and June 2014 also do not support a finding that his symptoms first met the 70 percent level within the one year prior to August 14, 2012, or since August 14, 2011. For example, he had hospitalizations for increased symptoms related to PTSD exacerbated by alcohol or drug abuse prior to August 2011 and after August 2012 (as noted by his attorney and in decisions assigning temporary total ratings), and an August 16, 2012, VA treatment record noted complaints of increased isolation (as noted in the June 2021 Board decision), among other mental health symptoms. This appears to have been part of the basis for an increase as of August 14, 2012. Therefore, the preponderance of the evidence is against an effective date earlier than August 14, 2012, for the award of a 70 percent rating for PTSD. There is no reasonable doubt to resolve in the Veteran's favor, and the appeal is denied. 2. An effective date earlier than August 14, 2012, for the award of a TDIU Because a TDIU is a type of increased rating, the same effective date rules apply. As noted above, the effective date for an increased rating will be the date of claim or up to one year prior to the receipt of the claim, if the increase in disability is first factually ascertainable within that one-year period. 38 C.F.R. § 3.400(o). A TDIU will be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, a schedular percentage threshold must be met. If there is only one service-connected disability, it shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. However, VA may still grant TDIU on an extraschedular basis if this threshold is not met if the evidence shows unemployability due to service-connected disabilities. 38 C.F.R. § 4.16. In determining unemployability, there is an economic component, which includes whether any employment was marginal, and a non-economic component, which includes mental and physical capacity based on occupational history, education, skills, and training. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Consideration should be given to prior education, training, and work experience, but not to age or impairment from nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Gleicher v. Derwinski, 2 Vet. App. 26 (1991); Pederson v. McDonald, 27 Vet. App. 276 (2015). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In this case, the Veteran has reported being unemployed since 1977 or 1980, although he applied for some temporary positions in 1989 and completed vocational training as an automotive machinist in 1981. See, e.g., March 2015 VA Form 21-8940. A TDIU was awarded based on his mental health impairment. The Veteran's claim for a TDIU was granted effective August 14, 2012, due to being deemed part and parcel of his underlying claim for an increased rating for PTSD, as his formal TDIU claim was not received until several years later. He meets the schedular criteria since August 14, 2012, based on his 70 percent rating for PTSD, with a combined rating of 80 percent. Prior to that date, his PTSD was rated 30 percent, and other disabilities of prostatitis and scars combined to less than 60 percent. Thus, he did not meet the schedular threshold criteria. However, as with PTSD, the date of claim controls. The Veteran had withdrawn the prior underlying appeal for increase in March 2012, he submitted a new claim on August 14, 2012, and he did not first reach the level of unemployability for VA purposes due to service-connected disability within the one year prior to August 14, 2012. Therefore, an earlier effective date for a TDIU must also be denied. 3. An effective date earlier than August 14, 2012, for basic eligibility for DEA Basic eligibility for Dependents' Educational Assistance (DEA) exists if a Veteran was discharged from service under conditions other than dishonorable and has a permanent and total service-connected disability. This may include a 100 percent rating based on an award of TDIU. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021. The Veteran's TDIU is effective since August 14, 2012, and an earlier effective date is denied herein. Thus, an earlier effective date for DEA must also be denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wheatley 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.