Citation Nr: 21013592 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-41 735 DATE: March 9, 2021 ORDER Entitlement to an effective date earlier than October 25, 2013, for the award of a 70 percent rating for posttraumatic stress disorder (PTSD) is denied. REMAND Entitlement to an effective date earlier than October 25, 2013, for the award of a total disability rating based on unemployability (TDIU) is remanded. FINDINGS OF FACT 1. While the October 5, 2015 correspondence can be sympathetically construed as an informal claim for TDIU, it cannot be interpreted as a claim for entitlement to an increased rating for service-connected PTSD. 2. On October 25, 2013, the RO received the Veteran’s claim for a higher rating for his service-connected PTSD; a December 2014 rating decision assigned October 25, 2013 as the effective date for a 70 percent rating. 3. It is not factually ascertainable that within the one-year period preceding October 25, 2013, the Veteran’s PTSD was productive of occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW An effective date prior to October 25, 2013, for the grant of a 70 percent rating for PTSD is not warranted. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.400(o), 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1968 until February 1973, to include a tour of duty in Vietnam where he earned a Purple Heart. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 Department of Veterans Affairs (VA) regional office (RO) rating decision. The Board denied the Veteran’s claims in a November 2018 rating decision. In July 2020, the Court of Appeals for Veterans Claims (the Court) set aside the November 2018 Board decision and remanded for adjudication. The Court held that the Board failed to address whether his October 5, 2012 statement could be sympathetically construed as a claim for increased compensation. The claims now return to the Board for further adjudication. Effective Date Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, 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. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim.” 38 U.S.C. § 5110(b)(2). See also 38 C.F.R. § 3.400(o)(2). The phrase “otherwise, date of receipt of claim” applies only if a factually ascertainable increase in disability occurred more than one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125 (1997). Moreover, the term “increase” as used in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). The Board notes that, 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, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA prior to that date, the former regulations apply and are cited below. Generally, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151. Any communication or action, indicating intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. An informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant 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 receipt of the informal claim. See 38 C.F.R. § 3.155(a). When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155(c). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A claim is 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), 3.155. The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that 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 claims must identify the benefit sought. Id. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. Entitlement to an effective date prior to October 23, 2013 for the award of a 70 percent rating for PTSD In July 2009, the Veteran sought service connection for PTSD. In November 2009, the RO granted the claim and assigned an initial 30 percent rating, effective July 29, 2009. In February 2010, the Veteran filed a notice of disagreement (NOD) disagreeing with the assigned rating. In November 2010, the RO increased the Veteran’s initial PTSD rating to 50 percent. The Veteran did not perfect an appeal. Therefore, the Board looks to determine when the Veteran thereafter filed a claim for an increased rating for PTSD, and concludes that he next filed a claim on October 25, 2013. On October 5, 2012, VA received a VA Form 21-4138 from the Veteran informing VA that he had been awarded disability benefits from the Social Security Administration (SSA). Accompanying this statement, is a copy of the notice to the Veteran of his award of Social Security monthly disability benefits. The Veteran submitted this evidence “in support of my claim.” The claims ongoing at the time were those for service connection for tinnitus, residuals of malaria, and TDIU. Additionally, at the time of the submission, the Veteran was only service connected for a noncompensable stomach scar and 50 percent for PTSD. The Board finds that, even though this submission can be sympathetically interpreted as a claim for increased compensation based upon unemployability in general (discussed in the remand portion of this decision), it cannot be reasonably construed as request (either formal or informal) for increased compensation based specifically on his service-connected PTSD. While a plain reading of the text of the SSA letter gives an indication that the Veteran is considered unemployable, there is no suggestion in either that letter or the Veteran’s statement that he is considered unemployable specifically due to his service-connected PTSD. As such, there is no indication that the benefit the Veteran is seeking is an increased rating for PTSD. Demonstratively, while the Social Security letter indicates that the Veteran is entitled to monthly income for being unemployable, it neither describes the reasons for the decision, nor mentions PTSD anywhere in the letter. Furthermore, the Veteran’s lay statement ambiguously represents that he submitted this evidence “in support of my claim.” There is not enough information in either document to suggest that the Veteran is specifically filing a claim for increased compensation for PTSD. In sum, while the Veteran’s October 5, 2012 SSA letter and lay statement are “sufficient evidence of unemployability given that he appears to have submitted this evidence to VA only to show that SSA had found him unemployable,” it does not necessarily follow that the Veteran is basing his claim of unemployability on any increased psychological symptoms. Without the link between unemployability and PTSD in these documents, it would not be reasonable to conclude that the October 5, 2012 correspondence was additionally a claim for increased compensation specifically for PTSD. Instead, October 25, 2013 is the proper effective date for the grant of a 70 percent disability rating for PTSD. On that day, the Veteran’s representative submitted a copy of the Veteran’s Social Security earning record and a copy of a Social Security Disability Determination and Transmittal indicating that the Veteran has been considered totally disabled due to a psychiatric disability since March 1, 2009. This evidence also showed that the Veteran was found to be disabled based on a primary diagnosis of a psychiatric disability and that he has not earned any income since 2009. Contrary to the October 2012 correspondence above, it is reasonable to interpret the October 2013 submission as a request for an increased rating for service-connected PTSD. These October 2013 Social Security documents specifically indicated that the Veteran had been considered totally disabled and has not earned any income since March 2009 based upon his psychiatric disability. While the information gleaned from the October 2013 SSA letter (that the Veteran is unemployable due to his psychiatric disability) is seemingly related to the October 2012 SSA letter (that the Veteran in unemployable), the Board is not free to apply the former retroactively to the latter. The fact of the matter is this: the relevant information pertaining to an increased rating for PTSD was not before the Board until the Veteran submitted the October 25, 2013 SSA documents. Thus, the remaining issue to be determined is whether it can be factually ascertained that the Veteran’s PTSD met the criteria for a 70 percent rating beginning on a particular date during the one-year period preceding the date of receipt of the increased rating claim, that is, from October 25, 2012 to October 25, 2013. The applicable criteria for evaluating PTSD are contained in 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment from PTSD under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Code 9411. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideations; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of the veteran’s personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. The Veteran argues that a 70 percent rating for PTSD was warranted at an earlier date because the SSA letter he submitted on October 5, 2012 showed that he was in receipt of SSA disability benefits. The SSA letter, however, is prior to the one-year period preceding the increased rating claim and it does not refer to any specific disability. Comparatively, the October 2013 SSA records show that he was awarded SSA disability benefits due to a primary diagnosis of anxiety disorder, effective March 1, 2009. Additional SSA records were received on November 2014, to include a consultative psychiatric examination report dated September 2012. Significantly, these records are dated prior to the October 25, 2012 threshold and do not show that on an ascertainable date during the period from October 25, 2012 to October 25, 2013, that the Veteran’s PTSD was shown to have worsened to such an extent that he met the 70 percent criteria. The medical evidence in the file pertaining to the Veteran’s PTSD shows that during the period from October 25, 2012 to October 25, 2013 he was a participant in PTSD group psychotherapy. During such sessions, it was noted that he was alert and fully oriented, had a neutral mood with appropriate affect, and had no suicidal/homicidal ideation or safety issues. Contemporaneous records also indicate that he was taking psychotropic medication (buspirone HCL and trazodone), for treatment of anxiety, depression, and insomnia. In short, this medical evidence does not provide a factual basis for finding that the Veteran’s PTSD warranted a 70 percent rating at an ascertainable point during the one-year period preceding October 25, 2013. The clinical findings are sparse and rather general or vague, and they do not present a disability picture from which it can be determined that, on a specific date, the Veteran’s PTSD symptoms were of such severity, frequency, and duration as to approximate occupational and social impairment with deficiencies in most areas. The Board finds that it is not factually ascertainable that an increase in the Veteran’s PTSD had occurred within the one-year period preceding October 25, 2013. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). The Veteran’s contentions regarding his receipt of Social Security disability benefits during this period have been considered, but the applicable regulations mandate that there must be factually ascertainable evidence within the year prior to the date of claim on October 25, 2013 that he satisfied the criteria for a 70 percent rating under Code 9411, and here such evidence is not shown. Accordingly, an earlier effective date for a 70 percent rating for the disability is not warranted. As the evidence is against the claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b). REASONS FOR REMAND An effective date earlier than October 25, 2013, for the award of a total disability rating based on unemployability (TDIU) is remanded. As referenced throughout the decision above, the Veteran filed a claim for increased compensation based upon unemployability on October 5, 2012. As stated by the Court in its July 2020 decision, the October 5, 2012 SSA letter and lay statement are “sufficient evidence of unemployability given that he appears to have submitted this evidence to VA only to show that SSA had found him unemployable.” As such, the Board finds that it is reasonable to conclude that the Veteran filed his claim for TDIU on October 5, 2012. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Therefore, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16 (a), an extraschedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b). However, prior to October 25, 2013, he did not meet the schedular criteria for TDIU as he was rated at 50 percent disabling for his service-connected PTSD and at noncompensable for his stomach scar. The Board does not have the authority to award an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Consequently, the issue of entitlement to TDIU prior to October 25, 2013 is referred to the Director of the Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). (Continued on the next page)   The matters are REMANDED for the following action: Refer the Veteran’s claim for TDIU from October 5, 2012 to October 23, 2013 to VA’s Director of Compensation Service for extraschedular consideration. Include a copy of the remand as well as a full statement as to the Veteran’s service-connected disabilities employment history, education, and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.