Citation Nr: A21019352 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 190222-3624 DATE: December 6, 2021 ORDER Entitlement to an effective date of April 3, 2016, and no earlier, for the assignment of a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran submitted a claim for an increased rating for PTSD on April 3, 2017. 2. In a July 2016 rating action, the Veteran was awarded service connection for PTSD, and assigned a 50 percent disability evaluation, effective from January 29, 2016. 3. New and material evidence relating to the evaluation of the Veteran's PTSD was received within one year of the July 2016 rating action. 4. In an August 2017 rating action, the Veteran's PTSD was increased to 70 percent, effective from April 2017. 5. Within a year of the August 2017 rating action, new and material evidence relating to the evaluation of PTSD, was added to the record. 6. Throughout the appeal period, the Veteran's PTSD was productive of symptoms causing occupational and social impairment, with deficiencies in most areas. CONCLUSION OF LAW The criteria for an effective date of January 29, 2016, for the assignment of a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.156, 3.400, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Marine Corps from March 1971 to March 1975. In October 2018, the Veteran submitted a Rapid Appeals Modernization Program (RAMP) election form with a supplemental claim request and elected the modernized review system of the Appeals Modernization Act (AMA). The Agency of Original Jurisdiction (AOJ) considered the evidence of record as of the date VA received the RAMP election form and issued the rating decision on appeal in January 2019, which denied an effective date earlier than April 7, 2017, for the assignment of a 70 percent rating for PTSD. In February 2019, the Veteran submitted a second RAMP election form with a hearing request. The Veteran testified before the Board at a hearing in December 2019. A transcript of the hearing has been associated with the claims file. As the Veteran requested a hearing under AMA, the Board of Veteran's Appeals (Board) will consider the evidence of record as of the date VA received the RAMP election form and any evidence presented at the Board hearing and within 90 days following the Board hearing. Initially, the Board notes that during the December 2019 Board hearing, following a lengthy discussion regarding which issue was properly on appeal, the Veteran and his representative chose to present testimony regarding the issue of entitlement to special monthly compensation (SMC). A review of the procedural history of this case indicates that the Veteran filed a claim for entitlement to SMC in July 2018. In an October 2018 rating decision, the issue of entitlement to SMC was denied, and a notice of disagreement (NOD) was not submitted in response. As noted above, the Veteran submitted RAMP election forms in October 2018 and February 2019, which were submitted following the receipt of a timely NOD in November 2017 regarding the issue of entitlement to an earlier effective date for an increased rating for PTSD. The Board finds that as an NOD was not submitted in response to the October 2018 rating decision denying the issue of entitlement to SMC, this issue was not in appellate status at the time the RAMP elections forms were submitted, and a RAMP election form may not be utilized to initiate an appeal. Therefore, the Board finds that neither of the RAMP election forms may be construed as including the issue of entitlement to SMC, and an appeal for the issue of entitlement to SMC has not been initiated. Thus, the only issue presently before the Board is entitlement to an effective date earlier than April 7, 2017, for the assignment of a 70 percent rating for PTSD. Earlier Effective Date In general, the effective date of an evaluation and award of compensation based upon an original claim or a claim reopened after final disallowance is either the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b). Additionally, 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 the 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). 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). 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. Further, the U.S. Court of Appeals for the Federal Circuit has found that 38 C.F.R. § 3.156(b) requires VA to evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242 (2010) (holding that even in increased ratings claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156(b) requires any subsequent decision to relate back to the original claim). In this case, in a July 2016 rating decision the Veteran was granted service connection for PTSD and assigned a 50 percent rating, effective from a January 29, 2016 claim. In May 2017, the Veteran submitted VA treatment records dated in April 2017, within one year of the July 2016 rating action, that revealed additional psychiatric complaints. As this was new and material evidence relating to the evaluation of the Veteran's psychiatric disability, VA was obligated to consider it. Until it did so, the prior rating remained pending. The evidence was not considered until an August 2017 rating action, that increased the Veteran's disability evaluation to 70 percent, effective from April 2017. The Veteran then initiated an appeal of this decision. Within a year of it, additional relevant records regarding the impairment due to the Veteran's PTSD was associated with the file. Shortly after that, the Veteran opted into the RAMP/ AMA appeal system. In January 2019, the RO continued to deny an earlier effective date for the Veteran's 70 percent PTSD disability evaluation. Because of the additional material evidence that was added to the record within a year of both the July 2016 rating action, and the August 2017 rating action, they had not become final. Therefore, the appeal period before the Board dates to the Veteran's original application for service connection Regarding ratings for PTSD, they are assigned under 38 C.F.R. § 4.130, DC 9411. Under DC 9411, for the 50 percent rating criteria, the evidence must show 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. For the 70 percent rating criteria, the evidence must show occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: 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 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); inability to establish and maintain effective relationships. Id. In June 2016, the Veteran underwent a VA examination regarding PTSD. The Veteran reported experiencing psychiatric symptoms since discharge from service. He reported sleep difficulties including waking up very two to three hours, experiencing night sweats, and experiencing weekly combat related nightmares. He reported always feeling depressed and nervous, experiencing excessive worry, being socially and emotionally withdrawn from others, and avoiding crowds. He stated that he has no social life, stays in his room for the most part, and is unable to take care of the household. Further, he stated that he is unable to help in the care of his minor son, who is cared for by his adult daughter. Lastly, he reported some forgetfulness, including being temporarily unable to remember names. The examiner diagnosed PTSD and determined that the Veteran's psychiatric symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short-term and long-term memory, disturbances of motivation and mood, difficulty in establish and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The examiner opined that the Veteran's level of impairment was occupational and social impairment with reduced reliability and productivity, which is consistent with the 50 percent rating criteria. In August 2017, the Veteran underwent a second VA examination regarding PTSD. The Veteran reported experiencing sleep difficulties including night sweats and nightmares related to combat and an in-service injury. He reported experiencing depression and excessive worry, including a fear that people are hiding in bushes or trees. He reported sometimes forgetting people's names, including the names of his children. He reported avoiding crowded places and loud noises, such as firework displays. He also reported sometimes seeing hallucinations of little bugs. The examiner diagnosed PTSD and determined that the Veteran's psychiatric symptoms included depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short-term and long-term memory, memory loss for names of close relatives, disturbances of motivation and mood, inability to establish and maintaining effective relationships, and difficulty adapting to stressful circumstances. The examiner opined that the Veteran's level of impairment was occupational and social impairment with deficiencies in most areas, which is consistent with the 70 percent rating criteria. Regarding the Veteran's VA treatment records, in May 2016 he reported always feeling depressed and angry, sleep difficulties, poor appetite, irritability, and the inability to feel pleasure. In June 2016, he reported continuing anxiety and depression, feeling worthless, sleep difficulties, flashbacks, hypervigilance, and avoidance of triggers. April 2017 records document complaints of a short and quick temper, with no train of thought. Records from 2018 continue to show depression and anxiety. The Board finds that the probative evidence of record indicates that the Veteran's psychiatric symptoms were consistent with the 70 percent rating criteria throughout the period on appeal. The symptoms demonstrated in the June 2016 VA examination and August 2017 VA examination are substantially similar; however, the Veteran was slightly more forthcoming in describing his symptoms during the August 2017 VA examination. During the June 2016 VA examination the Veteran reported being temporarily unable to remember names, and during the August 2017 VA examination he further elaborated that he is sometimes unable to remember names, including the names of his children. During the June 2016 VA examination the Veteran specifically described always feeling depressed and nervous, and the Board finds this to be consistent with the 70 percent rating criteria of near-continuous panic or depression. Additionally, the June 2016 VA examiner determined that the Veteran's psychiatric symptoms included difficulty in adapting to stressful circumstances, which is specifically consistent with the 70 percent rating criteria. Moreover, the Veteran's VA treatment records throughout the period on appeal also demonstrate near-continuous depression consistent with the 70 percent rating criteria. Therefore, the Board finds that the probative evidence of record demonstrates that Veteran's psychiatric symptoms warranted a 70 percent rating throughout the appeal period. The Board finds that the requirements for establishing an effective date of January 29, 2016, and no earlier, for the assignment of a 70 percent rating for PTSD have been met. Therefore, the appeal is granted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.