Citation Nr: 21006840 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 190627-10837 DATE: February 5, 2021 ORDER Entitlement to an effective date prior to April 21, 2017 for the grant of the 50 percent rating for sinusitis is denied. Entitlement to an effective date prior to April 21, 2017 for the grant of the 50 percent rating for chronic headaches is denied. Entitlement an effective date prior to April 21, 2017 for the grant of the 50 percent rating for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran filed a claim for an increased rating for sinusitis which was received by VA on April 21, 2017; it is not factually ascertainable that the Veteran’s sinusitis increased in severity warranting a 50 percent rating within the year prior to the receipt of her April 21, 2017 claim. 2. In an August 2019 rating decision, service connection for chronic headaches was granted, effective April 21, 2017, the date VA received the Veteran’s claim for service connection. 3. The Veteran filed a claim for an increased rating for PTSD which was received by VA on April 21, 2017; it is not factually ascertainable that the Veteran’s PTSD increased in severity warranting a 50 percent rating within the year prior to the receipt of her April 21, 2017 claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to April 21, 2017, for the grant of the 50 percent rating for sinusitis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for entitlement to an effective date prior to April 21, 2017, for the grant of a 50 percent rating for chronic headaches have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for an effective date prior to April 21, 2017 for the grant of a 50 percent rating for PTSD have not been met. 38 U.S.C. §§ 1155, 5107, 5510; 38 C.F.R. §§ 3.102, 3.157, 3.400, 4.3, 4.7, 4.130. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 2000 to November 2006. This case comes before the Board of Veterans’ Appeals (Board) from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). The Veteran opted the claims into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a June 2019 VA Form 10182, Decision Review Request: Board Appeal, identifying the May 2019 SOC. Therefore, the May 2019 SOC is the decision on appeal. In February 2020, the Board issued a decision regarding two more claims filed by the Veteran. See Board decision, February 27, 2020. The decision denied the claims for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 21, 2017, and the grant of eligibility to Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 prior to April 21, 2017. This decision was based on a VA Form 10182 filed by the Veteran in June 2019. See VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), received by VA June 27, 2019. In fact, the Veteran submitted two forms VA Form 10182 in June 2019. One concerned the issues which where the subject of the February 2020 Board decision. The other VA Form 10182 was unfortunately docketed incorrectly and was not in the electronic claims file at the time of the February 2020 Board decision. The Board apologizes to the Veteran for this oversight and hereby issues a supplemental decision to correct that oversight. Earlier Effective Dates for Increased Ratings VA regulation provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. For increased rating claims, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400 (o). However, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (finding that a Veteran’s claim for increased disability compensation must have occurred during the one year prior to the date of the Veteran’s claim in order for the Veteran to receive the benefit of an earlier effective date). If the increase occurred after the date of the claim, the effective date is the date of increase. 38 C.F.R. § 3.400(o)(2); Harper, 10 Vet. App. 126 -27. The effective dates for “staged” ratings are established using the principle set forth at 38 C.F.R. § 3.400(o)(2), that is, the earliest date that it is factually ascertainable that the criteria for each disability rating were met. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations apply to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA after March 24, 2015 date, the new regulations apply. Prior to March 24, 2015, a “claim” was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). According to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital can be accepted as an informal claim for increased benefits. See Servello at 199. 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. 38 C.F.R. § 3.157(b)(2). A “report of examination or hospitalization” under § 3.157(b) should “indicate that [a] veteran’s service-connected disability [has] worsened since the time it was last evaluated.” Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Moreover, the term “report of examination” under § 3.157(b) “implies that the medical record in question must describe the results of a specific, particular examination.” A letter may qualify if it, for instance, was “generated in connection with any particular VA medical examination” rather than, for example, a “claim for Social Security disability benefits that was pending at the time it was written.” Massie, 25 Vet. App. At 133. Other considerations include whether the letter relates “the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation,” rather than “present[ing] a very short summation of [the Veteran’s general condition, as [the physician] had observed it over” time. Id. 1. Sinusitis The Veteran asserts that an earlier effective date is warranted for the grant of the 50 percent rating for sinusitis, which was granted effective April 21, 2017. See rating decision, August 17, 2017. Specific argument in support of this appeal has not been provided. The basic facts here are not in dispute. The Veteran filed an intent to file claim for an increase for her service-connected sinusitis in April 2017. See intent to file claim, April 21, 2017. She filed a claim in May 2017. See claim, received by VA May 11, 2017. The rating for sinusitis was increased from noncompensable (zero percent) to 50 percent in an August 2017 rating decision. See rating decision, August 17, 2017. The Veteran filed a notice of disagreement (NOD) in February 2018. See NOD, received by VA February 27, 2018. VA issued a SOC in May 2019. See SOC, May 13, 2019. The Veteran filed a VA Form 10182, a formal appeal to the Board, in June 2019. See VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), received by VA June 27, 2019. The record fails to demonstrate a factually ascertainable increase in the severity of the Veteran’s sinusitis within the year prior to April 21, 2017 so as to warrant a 50 percent rating. Specifically, treatment records, as well as a July 2017 examination, fail to demonstrate such an increase. The July 2017 examiner noted the Veteran’s sinus issues have “progressed [as] shown by repeated sinus infection[s] over the years” and that the Veteran was going to be evaluated by an allergist. The examiner noted that the Veteran experienced mild functional limitation due to her sinusitis. See Miscellaneous Disability Benefits Questionnaire (DBQ), July 20, 2017. A computed tomography (CT) scan of the sinuses done in April 2017 was unremarkable. See Sinusitis DBQ, July 20, 2017. Thus, while such suggests a gradual worsening of the Veteran’s sinusitis over time, it is not factually ascertainable that it increased in severity so as to more nearly approximate warranting a 50 percent rating within the year prior to the receipt of her April 21, 2017 claim. Therefore, an earlier effective date for the award of a 50 percent rating for sinusitis is not warranted. Upon review of the record, no formal or informal claim for an increased rating for the Veteran’s sinusitis was received prior to April 21, 2017. See 38 C.F.R. §§ 3.151, 3.155, 3.157; Massie v. Shinseki, supra. May 2016 and December 2016 VA treatment notes show that the Veteran reported sinus issues to her providers. See VA treatment notes, May 5, 2016 and December 30, 2016. However, there is no indication of intent to file a claim detailed in these treatment notes. The VA treatment notes did not indicate that the Veteran’s sinusitis had worsened since it was last evaluated. Thus, the 2016 VA treatment notes cannot be considered an informal claim for benefits. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than April 21, 2017 for the grant of entitlement to a 50 percent rating for sinusitis. As the preponderance of the evidence is against the assignment of an earlier effective date, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Chronic Headaches The Veteran asserts that an earlier effective date is warranted for the grant of the 50 percent rating for chronic headaches, which was granted effective April 21, 2017. See rating decision, August 17, 2017. Specific argument in support of this appeal has not been provided. The August 2017 rating decision granted service connection for headaches and assigned it a 50 percent rating, effective April 21, 2017. See rating decision, August 17, 2017. Due to the fact that the Veteran asserts that an effective date earlier than April 21, 2017 is warranted for the grant of the 50 percent rating for chronic headaches, and her chronic headaches was not service connected prior to April 21, 2017, this claim is a de facto claim for an earlier effective date for the grant of service connection for chronic headaches. The Board will analyze it as such. The basic facts in this case are not in dispute. The Veteran filed an intent to file claim for service connection for chronic headaches as secondary to her service-connected sinusitis in April 2017. See intent to file claim, April 21, 2017. She filed a claim in May 2017. See claim, received by VA May 11, 2017. The claim was granted in an August 2017 rating decision. See rating decision, August 17, 2017. The Veteran filed a NOD in February 2018. See NOD, received by VA February 27, 2018. VA issued a SOC in May 2019. See SOC, May 13, 2019. The Veteran filed a VA Form 10182, a formal appeal to the Board, in June 2019. See VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), received by VA June 27, 2019. Ultimately, based on the laws and regulations previously cited, and after reviewing the totality of the evidence, the Board finds that an effective date prior to April 21, 2017, for the award of service connection for chronic headaches (or, if the Veteran wishes to characterize it otherwise – for the grant of the 50 percent rating for chronic headaches) is not warranted. In this regard, the Board recognizes that the Veteran may have had this disability for many years. Nevertheless, as discussed earlier, the effective date of an original claim will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q), (r). An August 2017 rating decision granted service connection for chronic headaches, effective April 21, 2017. Therefore, the Veteran cannot be assigned an effective date earlier than April 21, 2017. See Ingram v. Nicholson, 21 Vet. App. 232 (2007); see also McGrath v. Gober, 14 Vet. App. 28, (2000). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than April 21, 2017 for the grant of entitlement to service connection for chronic headaches. As the preponderance of the evidence is against the assignment of an earlier effective date, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. PTSD The Veteran asserts that an earlier effective date is warranted for the grant of 50 percent rating for PTSD, which was granted effective April 21, 2017. See rating decision, April 18, 2019. Specifically, the Veteran generally asserts that treatment records from April and May 2016 show an increase in PTSD, so the effective date for the 50 percent rating is warranted as of April 2016. See VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), received by VA May 5, 2020. Specific argument in support of this appeal has not been provided. The basic facts here are not in dispute. The Veteran filed an intent to file claim for an increase for her service-connected PTSD in April 2017. See intent to file claim, April 21, 2017. She filed a claim in May 2017. See claim, received by VA May 11, 2017. The rating for PTSD was continued at 30 percent in an August 2017 rating decision. See rating decision, August 17, 2017. The Veteran filed a NOD in February 2018. See NOD, received by VA February 27, 2018. VA issued a SOC in May 2019. See SOC, May 13, 2019. VA issued another decision in April 2019 which increased the Veteran’s PTSD rating from 30 percent to 50 percent disabling, effective April 21, 2017. The Veteran filed a VA Form 10182, a formal appeal to the Board, in June 2019. See VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), received by VA June 27, 2019. The record fails to demonstrate a factually ascertainable increase in the severity of the Veteran’s PTSD within the year prior to April 21, 2017 so as to warrant a 50 percent rating. Specifically, treatment records, as well as a July 2017 examination, fail to demonstrate such an increase. The July 2017 examiner noted that the Veteran related that she experienced no significant problems or changes in mood since her last appointment, and that her depression and anxiety have gotten worse. See Review PTSD DBQ, July 20, 2017. Thus, while such suggests a gradual worsening of the Veteran’s PTSD over time, it is not factually ascertainable that it increased in severity so as to more nearly approximate a 50 percent rating within the year prior to the receipt of her April 21, 2017 claim. Therefore, an earlier effective date for the award of a 50 percent rating for PTSD is not warranted. Upon review of the record, no formal or informal claim for an increased rating for the Veteran’s PTSD was received prior to April 21, 2017. See 38 C.F.R. §§ 3.151, 3.155, 3.157; Massie v. Shinseki, supra. VA treatment notes show that the Veteran reported PTSD issues to her providers and participated in individual therapy for PTSD. See VA treatment notes, June 22, 2017. However, there is no indication of intent to file a claim detailed in these treatment notes. Thus, the 2016 VA treatment notes cannot be considered an informal claim for benefits. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than April 21, 2017 for the grant of entitlement to a 50 percent rating for PTSD. As the preponderance of the evidence is against the assignment of an earlier effective date, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, 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.