Citation Nr: 21010718 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-35 047 DATE: February 25, 2021 ORDER An earlier effective date for the assignment of a 100 percent rating for posttraumatic stress disorder (PTSD) is granted effective January 20, 2016. FINDING OF FACT The evidence of record shows it was factually ascertainable that the Veteran’s PTSD worsened January 20, 2016, which was within a year of an Intent to File received by VA later in 2016. CONCLUSION OF LAW The criteria for an earlier effective date for the assignment of a 100 percent rating for PTSD are met effective January 20, 2016. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from September 2001 to March 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual Board hearing in January 2021; a transcript is of record. Entitlement to an earlier effective date for the assignment of a 100 percent rating for PTSD. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claim for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the formal claim. 38 C.F.R. § 3.155. For claims for an increase in a service-connected disability, if an increase in disability occurred within one year prior to the 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)(3); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98. The Veteran asserts that he should receive an earlier effective date of June 29, 2009, for his 100 percent rating for his PTSD. See 3/2/2017, NOD. The Veteran was granted service connection for PTSD in a February 2010 rating decision that assigned a 50 percent rating effective June 29, 2009. He did not submit a notice of disagreement with this decision. The Board acknowledges that VA medical records were associated with the claims file in August 2010. However, these records were not relevant to the Veteran’s claim as they addressed urology concerns. As such, the February 2010 rating decision became final. 38 C.F.R. § 3.156(b). A January 2017 rating decision granted a 100 percent rating effective September 14, 2016, based on the Veteran’s September 2016 Intent to File a Claim. Prior to the Veteran’s September 2016 Intent to File a Claim, he submitted correspondence to VA regarding outstanding claims. He specifically reported: body injuries, head injuries and concussions, chronic and intolerable body pain, dizziness, chronic headaches, and inflexible body movements. However, there is no assertion that his PTSD had worsened in this correspondence. The Veteran’s medical records show that in January 2013 his PTSD had worsened. Additionally, his records show his PTSD had increased insomnia, night terrors, and flashbacks on January 20, 2016. The Veteran testified at a Board hearing in January 2021. He and his representative asserted that his PTSD symptoms at the 2016 examination were consistent with his 2009 examination. As such, he believes that he should receive a 100 percent rating effective June 29, 2009. (CONTINUED ON THE NEXT PAGE)   After review of the claims file, the Board finds that an earlier effective date for assignment of the 100 percent rating is warranted effective January 20, 2016. The Veteran submitted his Intent to File a Claim in May and September 2016. There is no communication prior to these dates that might be construed as a claim for an increased rating for PTSD. The Board recognizes the Veteran’s testimony that his PTSD symptoms at the 2016 examination were the same as his 2009 examination and therefore an assignment of June 29, 2009 is warranted. However, the record does not show a claim for increased compensation during these years following the 2009 examination until the first Intent to File was received by VA. The Board acknowledges the Veteran’s medical records showed his PTSD symptoms had increased in January 2013. In this regard, the symptoms were not within one year of the Veteran filing his Intent to File a Claim in either May or September 2016. As such, the January 20, 2016 VA medical record is the earliest that it is factually ascertainable that his disability had increased. 38 C.F.R. § 3.400(o)(2). Therefore, the Board finds that an effective date for assignment of the 100 percent rating is warranted January 20, 2016. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, 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.