Citation Nr: A21020055 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 191016-38818 DATE: December 15, 2021 ORDER 1. An effective date prior to February 19, 2019, for the 70 percent rating for PTSD with residuals of TBI is denied. 2. The claim for a rating in excess of 70 percent for PTSD is dismissed. FINDINGS OF FACT 1. The evidence of record during the one-year period prior to February 19, 2019, does not support that it is factually ascertainable that the Veteran's PTSD with residuals of TBI symptoms had worsened during this period. 2. The Veteran's increased rating claim for migraine headaches is being adjudicated in a separate Board decision to allow for a wider period of evidence to consider. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 19, 2019, for a 70 percent disability rating for PTSD with residuals of TBI have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for dismissal of the claim for a rating in excess of 30 percent for migraine headaches are met. 38 U.S.C. § 7105(d)(5). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to February 1969. The Veteran provided testimony at an August 2021 Board hearing before the undersigned Veterans Law Judge (VLJ). A complete transcript is of record. This is a complex appeal that is spread over three Board decisions, issued concurrently, and is a product of the appeal of three rating decisions issued in May 2019 (increasing the rating for migraine headaches from 0 to 30 percent and deferring an increased rating for PTSD), in September 2019 (increasing the rating for PTSD from 30 percent to 70 percent as of February 19, 2019), and in January 2021 (granting TDIU and DEA as of October 30, 2019, and readjudicating the increased rating claims for PTSD and migraine headaches). The Veteran filed VA Form 10182s with each rating decision challenging various aspects of the rating decisions. The three Board decisions will address each of the issues appealed in the three Form 10182s. While TDIU is viewed as part of a claim for an increased rating, the claim for TDIU has been granted and thus the issue is the appropriate effective date for it, which is addressed in a separate decision. In this decision, the Board addresses the claim for an effective date earlier than February 19, 2019. While the issue of a rating for PTSD with residuals of TBI in excess of 70 percent was initially part of this decision's docket, the Board will address this issue in the 210129-136005 docket as this allows for a wider appeal period and thus consideration of more evidence. The reasoning for this is as follows. The Veteran was granted a 70 percent disability rating by the Agency of Original Jurisdiction (AOJ) in a September 2019 rating decision. The Veteran then filed a timely VA Form 10182 Notice of Disagreement in October 2019 appealing the increased rating claim and the assigned effective date, and selected the Appeals Modernization Act (AMA) review hearing lane. As such, were the increased rating PTSD issue to remain in this docket, Board review would be limited to the evidence of record at the time of AOJ's September 2019 rating decision, evidence submitted by the Veteran at the hearing, as well as evidence submitted within 90 days following the hearing. 38 C.F.R. § 20.302 (b). Conversely, because this issue is being adjudicated in the 210129-136005 docket, the evidence that may be considered would be evidence submitted at the time of the January 6, 2021 rating decision, as well as evidence submitted at the hearing and within 90 days following the hearing. Hence, because the issue of a rating in excess of 70 percent for PTSD is being addressed in a separate docket with the same date of claim, it renders the issue in the appeal stream moot, and the issue in this stream is dismissed. An effective date prior to February 19, 2019, for the assignment of the 70 percent rating for PTSD with residuals of TBI The Veteran is seeking an earlier effective date prior to February 19, 2019, for the 70 percent rating for his PTSD with residuals of TBI. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. An increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400(o). In this case, the Veteran's claim for an increased rating was received on February 19, 2019, and a review of all evidence of record dating back to February 19, 2018, is appropriate to determine when an increase in disability was "factually ascertainable" in terms of meeting or approximating the criteria for a higher rating. See Hazan v. Gober, 10 Vet. App. 511 (1992). A review of the evidence during this period fails to reveal any evidence which demonstrates it was "factually ascertainable" that the Veteran's PTSD symptoms had worsened during this period. Overall, the evidence does not show the Veteran's PTSD with residuals of TBI causes 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 or place; memory loss of names of close relatives, own occupation, or own name. Several VA treatment records are available between February 2018 and February 2019 addressing the Veteran's PTSD. For example, in January 2019, the Veteran reported that he had been experiencing nightmares, avoidance, and anxiety and he wanted to reduce the frequency of the symptoms. However, this report does not suggest a worsening of symptoms or provide sufficient information to support the assignment of a higher rating. Accordingly, an earlier effective date prior to February 19, 2019, for the assignment of the 70 percent rating for PTSD with residuals of TBI is not warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, 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.