Citation Nr: A21020523 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 200527-88424 DATE: December 27, 2021 ORDER The claim for an effective date earlier than June 26, 2019, for the award of a 100 percent rating for posttraumatic stress disorder (PTSD) with major depressive disorder is denied. FINDING OF FACT It is factually ascertainable that the service-connected PTSD and major depressive disorder increased in severity to the criteria contemplated by a 100 percent evaluation under Diagnostic Code 9411 on June 26, 2019, less than a year before receipt of the Veteran's claim on October 12, 2019. CONCLUSION OF LAW The criteria for an effective date earlier than June 26, 2019, for the award of a 100 percent rating for PTSD with major depressive disorder are not met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2005 to September 2009 with combat service in Southwest Asia. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 Higher-Level Review (HLR) decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim was developed in accordance with VA's modernized appeals system. The claim for an increased rating was initially adjudicated in a February 2020 rating decision when a total schedular (100 percent) disability evaluation was granted for the service-connected PTSD with major depressive disorder effective October 12, 2019. In March 2020, the Veteran filed a VA Form 20-0996 (Decision Review Request: Higher-Level Review) and requested readjudication of his claim via the HLR process. The AOJ issued the April 2020 HLR decision on appeal, which considered the evidence of record at the time of the prior February 2020 decision, and assigned an earlier effective date for the 100 percent evaluation from June 26, 2019. In May 2020, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal, and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the original February 2020 rating decision on appeal. 38 C.F.R. § 20.301. In a July 2020 statement, the Veteran argued that a total schedular rating was warranted for PTSD from December 14, 2016. The Veteran stated that he was given an "improper" rating when he was service connected for PTSD based on his use of the incorrect form when he applied for VA benefits. The Board has considered whether the July 2020 statement constitutes a claim for clear and unmistakable error (CUE) but has determined it does not rise to the level of a CUE claim. Final rating decisions can only be revised through a successful claim of CUE. See 38 C.F.R. § 3.105; see also Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002). To assert a valid claim of CUE, a claimant must describe the alleged error with some degree of specificity and provide persuasive reasons as to why the result would have been manifestly different but for the alleged error. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). Simply claiming CUE on the basis that the previous decision improperly evaluated the evidence can never satisfy the stringent definition of CUE. Id. at 44. As the Veteran has not alleged any specific error in a final rating decision (to include why his use of a certain form caused an error in the adjudication of his decision), the Board finds that a claim for CUE has not been raised. Should the Veteran wish to file such a claim, he should do so with specificity at the RO. 1. Entitlement to an effective date earlier than June 26, 2019, for the award of a 100 percent rating for PTSD with major depressive disorder. The April 2020 HLR decision on appeal awarded an effective date of June 26, 2019, for the grant of a total 100 percent rating for the Veteran's service-connected PTSD with major depressive disorder. The Veteran contends that an earlier effective date of December 14, 2016, or a date in 2009 is appropriate as he has manifested significant PTSD symptoms since his period of active combat service. In the case of a claim for an increased rating, if an increase in disability occurred within one year prior to the date of claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). The Board finds that the Veteran's PTSD and major depressive disorder increased in severity and manifested the symptoms associated with a 100 percent evaluation under Diagnostic Code 9411 on June 26, 2019within the one year period before the claim for an increased rating was received by VA. An effective date earlier than June 26, 2019, is therefore not possible for the award of a total schedular rating. Service connection for PTSD was granted in a December 2016 rating decision with an initial 30 percent evaluation assigned effective May 31, 2016. An increased 50 percent evaluation was granted in a February 2019 rating decision from November 2, 2018, and this disability evaluation was continued in a July 2019 rating decision. The July 2019 rating decision also recharacterized the Veteran's service-connected disability as PTSD with major depressive disorder. The Veteran's claim for an increased rating for PTSD was received by VA on October 12, 2019. There is no earlier communication from the Veteran indicating an intent to seek an increased rating for his PTSD; in fact, the only communication between VA and the Veteran during the period from July 2019 to October 2019 pertains to other claims unrelated to the Veteran's mental health. Therefore, for the purposes of determining the correct effective date for the grant of a 100 percent evaluation for PTSD and major depressive disorder, the date of claim is October 12, 2019. In response to the Veteran's claim for an increased rating, the current total 100 percent evaluation was assigned in the February 2020 rating decision effective from October 12, 2019the date of claim. The Veteran requested HLR of the effective date assigned his 100 percent rating in March 2020, and the April 2020 HLR decision on appeal found that an earlier effective date of June 26, 2019, was appropriate for the award of a 100 percent evaluation. The Veteran contends that an effective date even earlier than June 26, 2019, is warranted as he has manifested severe and debilitating PTSD symptoms since active duty. The HLR decision awarded an effective date of June 26, 2019, based on a finding that it was factually ascertainable that the Veteran's PTSD increased in severity to the degree contemplated by a 100 percent rating on that date within the one year period prior to receipt of the Veteran's claim on October 12, 2019. An even earlier effective date is only possible if the Board determines the Veteran's PTSD increased in severity between October 12, 2018, and June 26, 2019the earlier portion of the year period before the date of claim. The Board finds that the Veteran's PTSD increased in severity on June 26, 2019, the date of a VA examination first documenting symptoms that most nearly approximate a 100 percent evaluation. At that time, the Veteran was found to manifest psychiatric symptoms of intrusive memories, nightmares, avoidance of experiences that trigger traumatic memories, detachment, negative beliefs about the trauma, negative mood, loss of interest in activities, sleep disturbance, anger and irritability, reckless and self-destructive behaviors, problems concentrating, hypervigilance, and an increased startle response. He also reported obsessing about his appearance, verbal and physical aggression towards people and objects, a lack of empathy towards others, difficulty following rules and a schedule, and an obsession with playing videogames. These symptoms and the accompanying impairment are sufficient to support the award of a total disability rating for PTSD from June 26, 2019. Prior to June 26, 2019, the record does not document symptoms and impairment that are of similar severity, duration, or frequency as those demonstrated at the June 26, 2019, VA examination and associated with a 100 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In fact, treatment records are negative for evidence of any mental health complaints until January 2019 when the Veteran was found to experience PTSD, anxiety, and depression. The Veteran was provided a VA examination in November 2016, but that examination showed only occasional occupational and social impairment due to PTSD. In early June 2019, the Veteran's mother experienced a stroke, and this event appears to have been the impetus for the Veteran seeking mental health treatment. On June 5, 2019, the Veteran reported to his primary care doctor that he was depressed and anxious and had not bathed for several days after his mother's stroke. The Veteran was referred for mental health treatment but denied any acute problems. Five days later, the Veteran was provided a psychological consultation at the VA Medical Center (VAMC). His appearance and hygiene were normal, and he had no evidence of a thought disorder and normal insight and judgment. The Veteran stated that he had many hobbies and was described as "bright and engaging in healthy activities and "coping well in general." It is therefore clear that prior to June 26, 2019, the Veteran did not demonstrate symptoms that were contemplated by a total schedular rating for PTSD. The Board is cognizant of the Veteran's statements that he downplayed his symptoms of PTSD and denies experiencing mental health symptoms to various healthcare providers. In a May 29, 2019, statement, he reported that his condition had worsened, and he was not bathing regularly and neglecting his hygiene. These reports are similar to those made by the Veteran less than a week later on June 5, 2019, at the VAMC associated after his mother's stroke. The Board also notes that the Veteran filed a claim for service connection for major depression in June 2019 which was adjudicated in the July 2019 rating decision. In any event, the Veteran's statements in November 2018 and May 2019 describe symptoms such as depression, anxiety, lack of concentration, persistent thoughts, and insomnia. The Veteran did not provide any statements regarding the severity of these symptoms and the Board notes that they were used to support the award of service connection for major depression and a 50 percent evaluation. In any event, neither the lay or medical evidence of record establishes that the Veteran's PTSD with major depression most nearly approximated total occupational and social impairment and/or the symptoms associated with a 100 percent evaluation prior to June 26, 2019. The Board therefore finds that it is factually ascertainable that the Veteran's PTSD and major depression increased in severity on June 26, 2019. This increase occurred within the one-year period prior to receipt of his claim on October 12, 2019 and this date is the appropriate effective date for the award of a 100 percent evaluation under Diagnostic Code 9411. See 38 C.F.R. § 3.400(o) (if the increase in disability occurred more than one year prior to the claim, the increase is effective the date of claim.). To the extent the Veteran contends that his PTSD increased in severity in 2016 or as early as 2009, the regulations pertaining to effective dates provides that if an increase occurred more than one year prior to the claim, the increase is effective the date of claim. As such, even if the Board determined that the Veteran met the criteria for a 100 percent evaluation from 2009, the appropriate effective date for the award would be October 12, 2019the date of claim. The Veteran is currently in receipt of the earliest possible effective date and there is no legal basis for the assignment of an effective date earlier than June 26, 2019. Therefore, the claim for an earlier effective date is denied. JENNA BRANT Acting Veterans Law Judge Board of Veterans' Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.