Citation Nr: 21015473 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 12-11 823 DATE: March 17, 2021 ORDER An earlier effective date of December 20, 2010 for the award of an increased 70 percent disability rating for posttraumatic stress disorder (PTSD) is granted. An earlier effective date of February 14, 2011 for the award of an increased 20 percent disability rating for peripheral neuropathy of the right lower extremity is granted. An earlier effective date of February 14, 2011 for the award of an increased 20 percent disability rating for peripheral neuropathy of the left lower extremity is granted. FINDINGS OF FACT 1. A November 12, 2010 VA treatment record constitutes an informal claim for benefits under 38 C.F.R. § 3.157 (2014), and the criteria for an increased disability rating for PTSD were first met on December 20, 2010. 2. A May 5, 2010 VA treatment record constitutes an informal claim for benefits under 38 C.F.R. § 3.157 (2014), and the criteria for increased disability ratings for peripheral neuropathy were first met on February 14, 2011. CONCLUSIONS OF LAW 1. The criteria for an effective date of December 20, 2010, for the grant of an increased 70 percent disability rating for PTSD have been met. 38 U.S.C. §§ 5103(a), 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.160, 3.400 (2020); 38 C.F.R. §§ 3.155, 3.157 (2014). 2. The criteria for an effective date of February 14, 2011, for the grant of an increased 20 percent disability rating for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 5103(a), 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.160, 3.400 (2020); 38 C.F.R. §§ 3.155, 3.157 (2014). 3. The criteria for an effective date of February 14, 2011, for the grant of an increased 20 percent disability rating for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 5103(a), 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.160, 3.400 (2020); 38 C.F.R. §§ 3.155, 3.157 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service from June 1967 to June 1969, including combat service in the Republic of Vietnam. This case has a long procedural history. Most recently, in October 2019, the Board denied an effective date earlier than June 11, 2013 for the award of an increased 70 percent disability rating for PTSD, and an effective date earlier than May 5, 2012 for the award of increased 20 percent disability ratings for peripheral neuropathy of the right and left lower extremity. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a Joint Motion for Remand (Joint Motion). In the October 2020 Order, the Court vacated the October 2019 Board decision and remanded the case back to the Board for compliance with instructions provided in the Joint Motion. Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean, except as otherwise provided, that the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The applicable effective date statute and regulations provide that the proper effective date for increased rating claims is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of claim for increased rating. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim for increase. Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. The Federal Circuit has reaffirmed that “the plain language of [section] 5110(b)(2)...only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.” Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). 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. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments 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, as provided below. As in effect prior to March 2015, under 38 C.F.R. § 3.155, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, 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. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2014). A communication received from a service organization, an attorney, or agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written. 38 C.F.R. § 3.155(b) (2014). It is further noted that, as in effect prior to March 2015, under 38 C.F.R. § 3.157 (2014), once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or one of the uniformed services will be accepted as an informal claim for benefits. In Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff’d 724 F.3d 1325 (Fed. Cir. 2013), the Court held that the former § 3.157(b)(1) requires that a report of examination or hospitalization indicate that the Veteran’s service-connected disability worsened since the time it was last evaluated because, “[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1),” creating an unnecessary and unwarranted adjudicative burden on VA. The Court also has held that, in the absence of sufficient manifestation of an intent to apply for benefits for a particular disease or an injury, a document merely providing medical information in and of itself is not an informal claim for VA benefits. See Ellington v. Nicholson, 22 Vet. App. 141 (2007). 1. An earlier effective date of December 20, 2010 for the award of an increased 70 percent disability rating for PTSD is granted. The current effective date for the increased 70 percent disability rating for PTSD is June 11, 2013, the date of a VA PTSD Disability Benefits Questionnaire (DBQ) which showed worsening PTSD with severe social impairment, and occupational and social impairment with deficiencies in most areas. Symptoms noted at that examination included suicidal and homicidal ideas without intent, depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, impaired impulse control, and grossly inappropriate behavior. Prior to June 11, 2013, the Veteran was in receipt of a 30 percent rating for his PTSD. The AOJ granted a higher 70 percent disability rating in a July 2013 rating decision, presumably in response to a November 2012 letter from the Veteran’s attorney in which the attorney stated that the Veteran was not employable, in part due to “moderate PTSD” symptoms. Subsequent to receipt of that letter, the AOJ requested the June 2013 examination upon which the increased rating was awarded. The question before the Board is whether there are any documents of record which constitute an informal claim for benefits under the former § 3.157, such that an even earlier effective date for an increased disability rating can be assigned. For the reasons discussed below, the Board finds that an earlier effective date for the increased rating for PTSD is warranted. Determination of the appropriate effective date necessitates discussion of the applicable rating criteria. The Veteran’s PTSD has been evaluated under the provisions of 38 C.F.R. § 4.130, DC 9411. Under this code, a 30 percent disability rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is assigned where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned where there is 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 ideation; 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 personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. The Board finds that a November 12, 2010 VA treatment note constitutes an informal claim for benefits under 38 C.F.R. § 3.157 (2014). At that visit, the Veteran reported that, after watching a video about his platoon, he began having nightmares and feeling very depressed. He expressed a desire to join a combat group and felt that he was ready to begin speaking about his in-service experiences. The clinician noted that he would review the Veteran’s events and determine with him whether a monthly group or a CPT group would be most helpful in treating his symptoms. The impression was “PTSD increase in symptoms.” The Board finds that the clinician’s notation of increased symptoms could reasonably be interpreted as an informal claim for benefits. While there are VA treatment records pertaining to the Veteran’s mental health symptoms dated prior to November 12, 2010, none of them suggest or indicate an increase in the severity of his symptoms. As noted above, the Court has held that the former § 3.157(b)(1) requires that a report of examination or hospitalization indicate that the Veteran’s service-connected disability worsened since the time it was last evaluated to constitute a claim for benefits. Massie, 25 Vet. App. 123. Moreover, there are no documents within the year preceding November 12, 2010 which render it factually ascertainable that an increase in the Veteran’s PTSD symptoms had occurred. While the Board finds that the November 12, 2010 VA treatment record constituted an informal claim for benefits, it is not the date that entitlement to an increased rating arose, as it does not demonstrate the level of occupational and social impairment required for a disability rating in excess of 30 percent. Rather, the Board finds that the criteria for an increased rating were first demonstrated on December 20, 2010. A VA treatment record of that date indicates that the Veteran reported problems with control issues and irritability. He stated that he slept poorly and stayed away from groups of people due to his poor impulse control. He requested help with intrusive thoughts, sleep disturbance, depressed mood, and irritability. He stated that he had been having more problems since his retirement. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s report of impaired impulse control and social isolation, in particular, show that the criteria for a 70 percent disability rating were met as of December 20, 2010, but no earlier. The Board reiterates that the proper effective date is the later of the date of receipt of the claim (November 12, 2010) and the date entitlement arose (December 20, 2010). 38 C.F.R. § 3.400. In this case, therefore, the proper effective date is December 20, 2010. 2. An earlier effective date of February 14, 2011 for the award of an increased 20 percent disability rating for peripheral neuropathy of the right lower extremity is granted. 3. An earlier effective date of February 14, 2011 for the award of an increased 20 percent disability rating for peripheral neuropathy of the left lower extremity is granted. The current effective date for the increased 20 percent disability ratings for peripheral neuropathy of the lower extremities is May 5, 2012, the date of a VA Peripheral Nerve Conditions DBQ which showed an assessment of mild to moderate diabetic neuropathy, and a report of severe constant pain in the right leg, moderate constant pain in the left leg, moderate paresthesias in both legs, and moderate numbness in both legs. Sensory examination was decreased in the lower leg/ankle and foot/toes bilaterally. The Veteran used a cane, especially in open spaces, due to loss of sensation in his bilateral lower extremities. Prior to May 5, 2012, the Veteran was in receipt of 10 percent ratings for his right left lower extremity peripheral neuropathy. The AOJ granted higher 20 percent disability ratings in the July 2013 rating decision in response to the November 2012 letter from the Veteran’s attorney in which the attorney specifically requested increased disability ratings for the peripheral neuropathy. Subsequent to receipt of that letter, the AOJ requested a VA examination, which took place on June 11, 2013, and, in the July 2013 rating decision, awarded 20 percent disability ratings effective June 11, 2013. Later, in a May 2018 decision, the Board granted an earlier effective date of May 5, 2012, finding that May 5, 2012 was the earliest date as of which it was factually ascertainable that an increase in the peripheral nerve disability had occurred, and that the November 2012 claim was received within one year from that date. As above, the question before the Board is whether there are any documents of record which constitute an informal claim for benefits under the former § 3.157, such that an even earlier effective date for the increased disability ratings can be assigned. For the reasons discussed below, the Board finds that an earlier effective date for the increased ratings for peripheral neuropathy of the bilateral lower extremities is warranted. As above, determination of the appropriate effective date necessitates discussion of the applicable rating criteria. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8520 (neuritis and neuralgia of that group are evaluated under DCs 8620 and 8720). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis, where the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be for moderate, or with sciatic nerve involvement, for moderately severe incomplete paralysis. See 38 C.F.R. § 4.123. The Board finds that a May 5, 2010 VA treatment note constitutes an informal claim for benefits under 38 C.F.R. § 3.157 (2014). At that visit, the Veteran reported that he had some numbness and slight weakness in his leg, but that it was improving with physical therapy. The clinician adjusted his medication dose from 600 mg of Gabapentin three times a day to 800 mg of Gabapentin every 8 hours. The Board finds that this adjustment in medication could reasonably be interpreted as an informal claim for benefits. As above, while there are VA treatment records pertaining to the Veteran’s peripheral neuropathy symptoms dated prior to May 5, 2010, none of them suggest or indicate an increase in the severity of his symptoms. As noted above, the Court has held that the former § 3.157(b)(1) requires that a report of examination or hospitalization indicate that the Veteran’s service-connected disability worsened since the time it was last evaluated to constitute a claim for benefits. Massie. Moreover, there are no documents within the year preceding May 5, 2010 which render it factually ascertainable that an increase in the Veteran’s peripheral neuropathy symptoms had occurred. While the Board finds that the May 5, 2010 VA treatment record constituted an informal claim for benefits, it is not the date that entitlement to an increased rating arose, as it does not demonstrate more than mild incomplete paralysis as required for a disability rating in excess of 10 percent. Rather, the Board finds that the criteria for an increased rating were first demonstrated on February 14, 2011. A VA treatment record of that date indicates that the Veteran reported an increase in burning and tingling of his feet over the last week. He also reported some increased swelling in his feet and ankles. The clinician’s assessment was diabetes with “increased neuropathy symptoms (burning/tingling).” Resolving reasonable doubt in the Veteran’s favor, the Board finds that the notation of increased symptoms show that the criteria for 20 percent disability ratings were met as of February 14, 2011, but no earlier. [CONTINUED ON NEXT PAGE] The Board reiterates that the proper effective date is the later of the date of receipt of the claim (May 5, 2010) and the date entitlement arose (February 14, 2011). 38 C.F.R. § 3.400. In this case, therefore, the proper effective date is February 14, 2011. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Sherrard, 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.