Citation Nr: 21007352 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 20-16 993 DATE: February 9, 2021 ORDER An effective date prior to December 14, 1983, for the grant of service connection for posttraumatic stress disorder (PTSD) with panic disorder, agoraphobia, and undifferentiated somatoform disorder (competent) is dismissed. An effective date earlier than September 28, 2009, for the assignment of the 100 percent rating for PTSD, is denied. FINDINGS OF FACT 1. The issue of entitlement to an effective date prior to December 14, 1983, for the grant of service connection for PTSD with panic disorder, agoraphobia, and undifferentiated somatoform disorder (competent) stems from an appeal of a July 2017 rating decision by a VA Regional Office (RO) implementing an unappealed July 2017 Board decision that assigned an effective date of December 14, 1983, for this issue. 2. An effective date prior to September 28, 2009, for the assignment of a 100 percent disability rating for service connection for PTSD with panic disorder, agoraphobia, and undifferentiated somatoform disorder was not factually ascertainable. CONCLUSIONS OF LAW 1. As the issue of entitlement to an effective date prior to December 14, 1983, for the grant of service connection for PTSD with panic disorder, agoraphobia, and undifferentiated somatoform disorder (competent) stems from the appeal of September 2017 rating decision implementing a final July 2017 Board decision, it is not appealable. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. 2. An effective date prior to September 28, 2009, for the assignment of a 100 percent rating for the PTSD with panic disorder, agoraphobia, and undifferentiated somatoform disorder (competent) is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400, 4.132, Diagnostic Code 9411 (effective before November 7, 1996); 38 C.F.R. § 4.130, Diagnostic Code 9411 (effective November 7, 1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from September 1967 to September 1970. According to the November 2018 Substantive Appeal, the Veteran requested a hearing before the Board in Washington, DC. However, in March 2020 the Veteran withdrew his request for a hearing; thus, his request for a Board hearing is deemed withdrawn. Earlier Effective Date Historically, in a July 2013 rating decision, the RO granted entitlement to service connection for PTSD with panic disorder, agoraphobia, and undifferentiated somatoform disorder (competent), at a 100 percent disability rating, effective November 9, 2009, which was the date of the Veteran's informal claim to reopen was submitted by his former representative. The Veteran submitted a notice of disagreement (NOD) in January 2014 where his representative argued that the effective date for his service-connected PTSD should have been March 26, 1984, the original date of claim. A January 2015 rating decision denied an increased disability rating and a May 2015 Statement of the Case (SOC) determined that an effective date prior to November 9, 2009, for the grant of service connection for PTSD was not demonstrated. The Veteran timely appealed. Subsequently, in a July 2017 Board decision, an effective date of December 14, 1983, but no sooner, for the grant of PTSD with panic disorder, agoraphobia, undifferentiated somatoform disorder was granted. A September 2017 rating decision assigned an effective date of December 14, 1983, for the grant of service connection pursuant to the July 2017 Board decision and assigned a 30 percent disability rating from December 14, 1983, and a 100 percent disability rating from September 28, 2009. The Board notes that in July 2017, prior to the Board decision, the Veteran submitted VA form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, for “PTSD” among other disabilities. This was construed as a claim for an increased disability rating and in December 2017, the RO issued a rating decision continuing the Veteran’s 100 percent disability rating for service-connected PTSD. In March 2018, the Veteran submitted an NOD for “PTSD prior to 2009.” The Veteran specifically indicated that the NOD pertained to an October 2017 VA notification letter following the September 2017 rating decision. According to the October 2017 VA notification letter, the Veteran was notified that his service-connected PTSD with panic disorder, agoraphobia, and undifferentiated somatoform disorder (competent) was assigned a 30 percent disability rating, effective December 14, 1983, and 100 percent disability rating, effective September 28, 2009. In an October 2018 SOC, the Veteran was denied entitlement to an effective date earlier than December 14, 2983, for service connection for PTSD with panic disorder with agoraphobia and undifferentiated somatoform disorder (competent) and entitlement to a 100 percent evaluation from December 14, 1983. The Veteran timely appealed in November 2018. 1. An effective date prior to December 14, 1983, for the grant of service connection for PTSD with panic disorder, agoraphobia, and undifferentiated somatoform disorder. In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the Court held that once a decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error. The Court held that appellants are prohibited from collaterally attacking a prior final decision by filing a freestanding earlier effective date claim. The Court specifically held that, once a decision has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of a decision. The Court reasoned that to allow such claims would vitiate the rule of finality. See Rudd, 20 Vet. App. at 299. The Court held that if a freestanding claim for an earlier effective date is raised, an appeal in the matter should be dismissed. The Veteran was notified of the July 2017 Board decision and the avenues to express dissatisfaction therewith. He did not file a motion for reconsideration, or a motion for vacation or revision based on clear and unmistakable error. He also did not initiate an appeal of that decision to the United States Court of Appeals for Veterans Claims. As such, the Board’s decision is final. 38 C.F.R. § 20.1100. It follows that any further claim of entitlement to an earlier effective date for the award of service connection is a freestanding effective date claim. The September 2017 rating decision and the October 2017 VA notification letter notified the Veteran of the Board's decision by assigning an earlier effective date of December 14, 1983, for the award of service connection, and the Veteran appealed that decision with a March 2018 NOD. However, a disagreement with a Board's decision cannot be raised by expressing disagreement with a RO's rating decision implementing it. See Harris v. Nicholson, 19 Vet. App. 345 (2005). Thus, with respect to the issue of entitlement to an earlier effective date for an effective date prior to December 14, 1983, for the grant of service connection for PTSD with panic disorder, agoraphobia, and undifferentiated somatoform disorder (competent), the RO's acceptance of the Veteran's March 2018 NOD, issuance of the October 2018 Statement of the Case, acceptance of the November 2018 substantive, and certification of the claim to the Board were improper. Given the above, the Board finds there is no valid claim for an effective date prior to December 14, 1983 for the grant of service connection for PTSD with panic disorder, agoraphobia, and undifferentiated somatoform disorder (competent), and the appeal is dismissed. To the extent the Veteran believes that the Board committed a clear and unmistakable error in its July 2017 decision, the appropriate course of action is filing a motion for vacation or revision based on clear and unmistakable error. No such motion has been filed as of the date of this decision. 2. An effective date earlier than September 28, 2009, for the assignment of the 100 percent rating for PTSD, is denied. An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. Id. Thus, three possible dates may be assigned depending on the facts of the case: (1.) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2.) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3.) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper, 10 Vet App at 126. In addition, the United States Court of Appeals for Veterans Claims (Court) has indicated that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). Therefore, determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred or was "ascertainable." 38 C.F.R. §§ 3.155, 3.400(o)(2) (2018); Hazan, 10 Vet. App. at 521. 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. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining when an increase is "factually ascertainable," look to all of the evidence including testimonial evidence and expert medical opinions as to when the increase took place. VAOPGCPREC 12-98. As stated above, the July 2013 rating decision granted the Veteran’s claim for service connection for PTSD with panic disorder, agoraphobia, and undifferentiated somatoform disorder (competent) to which he submitted a timely NOD for an effective date prior to November 9, 2009, not for an increased disability rating. Subsequently, in July 2017 the Board granted an effective date of December 14, 1983. The issue of whether an initial increased disability rating in excess of 100 percent was not part of the appeal and therefore, not adjudicated by the Board. In the same month as the Board decision, the Veteran submitted a claim for “PTSD” which was construed as a claim for an increased disability rating. In September 2017, prior to the RO’s adjudication of this claim, the RO issued a rating decision implementing the Board’s decision by assigning an effective date of December 14, 1983, for the grant of service connection, and assigned a 30 percent disability rating from December 14, 1983, and a 100 percent disability rating from September 28, 2009. In December 2017, the RO denied the Veteran’s July 2017 claim and continued the 100 percent disability rating, effective September 28, 2009. The Board finds that the Veteran submitted a timely appeal to the RO’s assignment of the disability ratings. The Veteran is seeking an earlier effective date prior to September 28, 2009, for the 100 percent rating for his PTSD. Prior to September 28, 2009, a 30 percent disability rating was assigned, effective December 14, 1983. These disability ratings were assigned pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Board notes that VA revised the rating criteria for PTSD effective November 7, 1996. When the regulations concerning entitlement to a higher rating are changed during the course of an appeal, the Veteran may be entitled to resolution of his claim under the criteria that are to his advantage. The former rating criteria may be applied throughout the period of the appeal, if they are more favorable to him. The revised rating criteria may be applied only prospectively, however, from the effective date of the change forward unless the regulatory change specifically permits retroactive application. 38 U.S.C. § 5110 (g); VAOPGCPREC 7-03; VAOPGCPREC 3-00; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the former rating criteria for evaluating PTSD, effective before November 7, 1996, PTSD was evaluated under the General Rating Formula for Neuropsychiatric Disorders found in 38 C.F.R. § 4.132. See 38 C.F.R. § 4.132, Diagnostic Code 9411 (effective before November 7, 1996). A maximum 100 percent rating was assigned under the former rating criteria for PTSD where the attitudes of all contacts except the most intimate were so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality were present with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior and the Veteran was demonstrably unable to obtain or retain employment. Id. On November 7, 1996, the rating criteria for PTSD were revised and renumbered as 38 C.F.R. § 4.130, Diagnostic Code 9411. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (effective November 7, 1996). Under the revised rating criteria, a 100 percent rating is assigned under the revised Diagnostic Code 9411 for PTSD manifested by total occupational and social impairment due to such symptoms as gross impairment in thought process 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, and memory loss for names of close relatives, own occupation, or own name. Id. The Board finds that prior to September 28, 2009, the medical treatment records, VA or private, did not indicate any complaint, treatment, or findings of increased severity regarding his PTSD. Specifically, treatment records from 1984 indicated complaints of a nervous condition, to include anxiety, flashbacks, and nightmares. However, according to a February 1984 psychiatric examination report, a mental status examination revealed the Veteran was alert, oriented, cooperative, intelligence was above average, memory was intact, handled figures appropriately, and showed good insight and judgment. An addendum to the psychiatric examination stated no nervous condition was found. Significantly, the Board finds that the following the February 1984 examination report, there are no other treatment records pertaining to the severity of his mental health until September 2 8, 2009. As there are no documents or treatment records submitted that could be construed as an informal claim, and no competent evidence demonstrating that an increase in disability was factually ascertainable, prior to September 28, 2009, the effective date of the assignment of a 100 percent evaluation for PTSD with panic disorder, agoraphobia, and undifferentiated somatoform disorder (competent) cannot be prior to September 28, 2009. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Accordingly, the Board finds that the claim of entitlement to an effective date prior to September 28, 2009, for the award of a 100 percent evaluation for a PTSD with panic disorder, agoraphobia, and undifferentiated somatoform disorder (competent) must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an earlier effective date, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). TIFFANY N. HANSON Acting 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.