Citation Nr: 21022897 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 12-11 113 DATE: April 19, 2021 ORDER An effective date prior to March 13, 2009 for service connection for bilateral pes planus is denied. An effective date prior to March 13, 2009 for service connection for posttraumatic stress disorder (PTSD) is denied. An effective date prior to January 22, 2010 for right knee osteoarthritis is denied. An effective date prior to January 22, 2010 for left knee osteoarthritis is denied. The rating reduction for the service-connected post-traumatic stress disorder (PTSD) from 100 to 50 percent, effective August 1, 2018, was improper, and the 100 percent rating is restored, effective August 1, 2018 is granted. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) is granted. FINDINGS OF FACT 1. The Veteran’s claims for service connection for bilateral pes planus and PTSD were first received by VA on March 13, 2009. 2. The Veteran’s claims for service connection for right and left knee disorders were first received by VA on January 22, 2010. 3. The evidence of record does not show that the Veteran’s service-connected PTSD improved to the point that he is better able to function under the ordinary conditions of life and work beginning August 1, 2018. 4. The Veteran’s additional service-connected disabilities are independently ratable at 60 percent, separate and distinct from the Veteran’s 100 percent service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 13, 2009 for service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for an effective date prior to March 13, 2009 for service connection for posttraumatic stress disorder (PTSD) 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 January 22, 2010 for right knee osteoarthritis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for an effective date prior to January 22, 2010 for left knee osteoarthritis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 5. [Grant] The criteria for restoring the rating reduction for the service-connected PTSD to 100 percent beginning August 1, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.159, 3.344. 6. The criteria for entitlement to SMC pursuant to 38 U.S.C. § 1114(s) have been met. 38 U.S.C. §§ 1114, 1154, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 2001 to August 2004, to include service in Afghanistan. The case is on appeal from April 2010, January 2011, March 2011, and May 2018 rating decisions. In the January 2011 rating decision, service connection was granted for PTSD with dysthymia, effective March 13, 2009. In the March 2011 rating decisions, service connection was granted for bilateral patellar tracking disorder, effective January 22, 2010, and bilateral pes planus, effective March 13, 2009. The Veteran noted disagreement with the effective dates assigned and appealed to the Board. In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In an August 2017 rating decision, bilateral patellar tracking disorder was recharacterized as right and left knee osteoarthritis. Service connection for left knee osteoarthritis was granted effective April 30, 2012. When on appeal in January 2018, the Board granted an effective date of January 22, 2010, but no earlier; denied the remainder of the claims for earlier effective dates; and remanded the claim for service connection for a lumber spine disorder. The Veteran appealed the earlier effective date claims to the United States Court of Appeals for Veterans Claims (Court). In an August 2019 Joint Motion for Partial Remand (JMPR), the Court vacated the Board’s denials of earlier effective dates for service connection, and these claims returned to the Board. In January 2018, the Board also remanded the claim of entitlement to service connection for a low back disorder. The regional office (RO) in September 2019 issued a supplemental statement of the case returning the claim of service connection for a low back disorder to the Board’s jurisdiction. When last on appeal in February 2020, the Board granted service connection for a lumbar spine disorder and denied the remainder of the claims for earlier effective dates. The Veteran appealed the earlier effective date claims to the Court. In a November 2020 JMPR, the Court vacated the Board’s denials of earlier effective dates for service connection, and these claims now return to the Board. In May 2020, the Board certified the Veteran’s appeal for rating reduction for service-connected PTSD from 100 to 50 percent and entitlement to SMC. Effective Date Unless specifically provided otherwise, the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise, the date for a grant of service connection is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400 (b)(2)(i). A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). Treatment records by themselves do not constitute “informal claims” for service connection. 38 C.F.R. § 3.157; Sears v. Principi, 16 Vet. App. 244 (2002). While VA should broadly interpret submissions from a veteran, it is not required to infer claims not specifically raised. Brannon v. West, 12, Vet. App. 32 (1998). In this case, service treatment records (STRs) are unavailable. In such cases, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. 38 U.S.C. § 5107(b); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (declining to apply an “adverse presumption” where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant’s allegation of injury or disease in service). Moreover, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). 1. An effective date prior to March 13, 2009 for service connection for bilateral pes planus. 2. An effective date prior to March 13, 2009 for service connection for PTSD. 3. An effective date prior to January 22, 2010 for right knee osteoarthritis. 4. An effective date prior to January 22, 2010 for left knee osteoarthritis. The Veteran requests that service connection for his bilateral pes planus, PTSD, right knee osteoarthritis, and left knee osteoarthritis be effective August 14, 2004, the date after separation from service. He notes that he was part of the Compensation and Pension Program at his last duty station. In support, the Veteran has submitted a letter dated August 13, 2004, confirming his enrollment in the program. According to the Veteran, this demonstrates that he filed claims for the specific disabilities currently at issue while still in service. A VA listing of the Veteran’s treatment dated from September 2001 to June 2004, which includes the Veteran’s period of service, indicates that he underwent other specified counseling at a Department of Defense military treatment facility in February 2002. A diagnosis was not provided. Another February 2002 entry, on that same day, reflects that the Veteran underwent a general psychiatric examination at a Department of Defense military treatment facility. Again, a diagnosis was not provided. In February 2002, the Veteran also sought treatment for pain in a limb from a Department of Defense military treatment facility. Specifically, the available notes indicate a diagnosis of a sprain of the knee and leg, not otherwise specified. In the claims file, there is an August 2004 letter from a VA Site Manager for Compensation Physical Examinations. Therein, he asks that the Veteran’s medical and dental records be sent to the relevant RO. In the file, there is an appeal checklist, with a “Change Date” of December 9, 2004. The Certification Worksheet contained therein lists the Veteran’s name, claims number, representative at the time, a January 13, 2011 date of decision, and January 14, 2011 date of notification. The Veteran also received treatment after service for each of the disabilities for which he claims an earlier effective date for service connection. For example, a January 2009 treatment entry relates a diagnosis of pes planus. In February 2009, the Veteran reported that he had had flat feet for a long time, even prior to military service. A December 2008 VA treatment entry relates a diagnosis of an acute psychosis with suicidal and homicidal ideation and another December 2008 VA treatment entry refers to a diagnosis of PTSD, which the Veteran has identified as stemming from his service in Afghanistan. A January 2010 VA treatment entry notes that the Veteran complained of bilateral leg pain, especially near the lateral knee surfaces. On March 13, 2009, the Veteran filed an informal claim for service connection for PTSD and flat feet. He noted that he would file a formal claim once he collected all the evidence to support his claim. He did not reference any prior claim or prior decision regarding these disabilities. On January 22, 2010, the Veteran filed formal claims for PTSD, flat feet, and a bilateral knee disorder. Therein, the Veteran indicated that he had previously filed a claim with VA. He noted that STRs would show treatment for bilateral pes planus and his knees. A July 2010 correspondence from the Veteran’s licensed social worker also notes the Veteran’s statements that he originally filed a VA Form 21-526 for PTSD, pes planus, and bilateral knee conditions prior to separation from service and references the August 2004 correspondence noted above. At the June 2017 Board hearing, the Veteran testified as to a low back injury during service, stating that, because he has had symptoms since 2003, he filed a claim for his low back before he separated from service. Throughout the appeal, the Veteran has continuously reiterated his assertions. See VA Form 9, April 2012; see also Correspondence, April 2012, June 2018, and October 2020. The Veteran has also submitted statements from a commanding officer who knew the Veteran for two years while in service and noted that the Veteran was professional and completely honest and trustworthy. See Letter of Recommendation, August 2010. From the Veteran’s statements, the August 2004 letter, and the statement from his social worker, it is clear that the Veteran was part of the Compensation and Pension Program at his last duty station of record. The Board will also concede that the Veteran filed a claim for some VA benefit at that time as “VA CLAIM” box was checked on an internal VA document dated August 13, 2004. The question is whether the Veteran filed specifically for service connection for PTSD, bilateral pes planus, a right knee disorder, and a left knee disorder, or at least symptoms related to these disabilities. While the Veteran did note in his January 2010 claim that he had previously filed a compensation claim, he does not specify what benefit he had previously sought. Further, his 2009 and 2010 claims are stylized as claims, not inquiries into the status of a pending claim filed 5 or 6 years prior. In his March 2009 claim for pes planus and PTSD, the Veteran indicated that he was planning to file a formal claim later because he was still gathering evidence in support of his claim. However, if he had filed previously for these disorders, and needed to submit new evidence, it seems that the claim would have been stylized as a request for reconsideration or a petition to reopen. There is also a bit of a gap between service and when medical records in the claims file show treatment for these disorders. For instance, after service, the earliest medical records for mental health treatment are from December 2008, the earliest medical records for foot problems are from January 2009, and the earliest medical records for knee problems are from January 2010. While lack of treatment certainly is not dispositive, and the Veteran’s symptoms have been reported to have originated in or stemmed from service, the Veteran’s treatment for these disabilities may reflect why he filed only for PTSD and flat feet in March 2009 but included a claim for service connection for his knees in his January 2010 application. This would indicate that prior filings were likely not for PTSD, pes planus, and knee disorders. Finally, the Veteran’s testimony at the Board hearing indicates that he filed service connection for a low back disorder before separating from service because he has had symptoms since 2003. Though the Veteran had the opportunity, he did not provide any testimony indicating that he specifically filed for service connection for his pes planus, PTSD, or knees at that time. Rather, he resubmitted the same August 2004 letter indicating his participation in the Compensation and Pension Program. The appeal checklist lists a “Change Date” of December 9, 2004. It is unclear to what the “Change Date” refers, but all the information contained in the checklist is from 2011. Thus, this is not an indication that a prior claim was filed. The Board acknowledges that the Veteran is competent to report that he suffered from his service-connected disabilities at issue during service and thereafter, and the Board previously indicated that the Veteran’s statements appeared credible. However, upon a thorough review, the record does not show that the Veteran filed any correspondence which could be construed as a formal or informal claim for service connection for PTSD, bilateral pes planus, or bilateral knee disorder at any time prior to March 13, 2009. See 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015) (defining an informal claim as “[a]ny communication or action, indicating an intention to apply for one or more benefits… Such informal claim must identify the benefit sought”); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009) (the essential elements of a claim are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing”); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed.Cir.2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1354 (Fed.Cir.1999) (noting that even an informal claim must be in writing). Given the above, and while the Board is mindful of the Veteran’s statements that he filed for claims prior to separation from service, the evidence demonstrates that the Veteran did not file a claim for service connection for PTSD and bilateral pes planus until March 13, 2009 and a claim for bilateral knee disorder on January 22, 2010. Indeed, treatment records and correspondence from the Veteran from 2008 through 2010 indicate that claims for service connection for PTSD and bilateral pes planus were first received by VA on March 13, 2009 and claims for service connection for the left and right knee disorders were first received on January 22, 2010. Any treatment sought from VA has not indicated an intention to apply for benefits. Brannon, supra. Although the Veteran credibly reported that his disabilities began in service, the effective date for service connection in this case is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400 (b)(2)(i). As the Veteran asserts, the date the disability arose was in August 2004 while the date the claims were received was March 13, 2009 and January 22, 2010. As the later of those dates is the dates the claims were received, March 13, 2009 and January 22, 2010, an effective date prior to March 13, 2009 for service connection for PTSD and bilateral pes planus and prior to January 22, 2010 for service connection for bilateral knee disorder is not warranted as a matter of law. The benefit of the doubt doctrine is therefore inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). In reaching this conclusion, the Board has carefully considered the evidence of record in light of the unavailability of STRs and the substance of the Veteran’s participation in the Compensation and Pension Program upon separation from service. See O’Hare, supra. 5. The rating reduction for service-connected PTSD from 100 to 50 percent, effective August 1, 2018, was improper, and the 100 percent rating is restored. The Veteran seeks restoration of the 100 percent rating for his service-connected PTSD beginning August 1, 2018. The Veteran asserts that despite the findings of the July 2019 VA examination upon which the reduction was based, his PTSD did not improve under the ordinary conditions of life and work. In support, the Veteran cites the provisions set forth in 38 C.F.R. § 3.343 and 38 C.F.R. § 3.344 and maintains that VA has not met its burden under these regulations. In a December 2017 rating decision, a reduction in the Veteran’s service-connected PTSD rating from 100 percent to 30 percent was proposed. After the Veteran failed to appear for a requested hearing, a May 2018 rating decision reduced the Veteran’s service-connected PTSD rating from 100 percent to 30 percent, effective August 1, 2018. In response to the reduction, the Veteran submitted a May 2019 Notice of Disagreement and a July 2019 VA examination was obtained. In a September 2019 rating decision, the Veteran’s service-connected PTSD rating was increased from 30 percent to 50 percent, effective August 1, 2018. As there was no procedural error in the reduction of the disability rating for PTSD, the Board now will consider whether the reduction was legally and factually appropriate. 38 C.F.R. § 3.105(e). Total disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition. Examination reports showing material improvement must be evaluated in conjunction with all the facts of record, and consideration must be given particularly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months). 38 C.F.R. § 3.343(a). A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 C.F.R. § 3.344. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a disability rating is reduced without following the applicable regulations, the reduction is void from the beginning. Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a veteran’s disability rating, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 413, 420 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, set forth in 38 C.F.R. § 3.344(a) and (b). These provisions provide that rating agencies will handle cases affected by change of medical findings so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. Under 38 C.F.R. § 3.344(a) and (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. Kitchens v. Brown, 7 Vet. App. 320 (1995). Where a rating reduction was made without observance of law, the reduction must be vacated, and the prior rating restored. Schafrath, 1 Vet. App. at 595. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated (although post-reduction medical evidence may be considered in the context of considering whether actual improvement was demonstrated). Dofflemyer v. Derwinski, 2 Vet. App. 277, 28182 (1992). The veteran need not demonstrate entitlement to retain the higher evaluation; rather, it must be shown by a preponderance of the evidence that the Agency of Original Jurisdiction’s (AOJ) reduction was warranted. Kitchens, 7 Vet. App. 320 (1995). Here, the Veteran’s 100 percent disability rating had been in effect for more than five years. This is calculated from the effective date of the establishment of the former rating to the effective date of the reduction. See Brown v. Brown, 5 Vet. App. 413 (1993). Upon review of the evidence of record, the Board finds that the reduction in this case was improper. Because the Veteran’s disability rating was in effect for longer than five years, the heightened protections of 38 C.F.R. § 3.344(a) and (b) apply. In this case, the AOJ made no findings with regards to any of the provisions of 38 C.F.R. § 3.344(a), including whether there was material improvement and that the material improvement would be maintained in the ordinary conditions of life. The record shows that the RO reduced the rating at issue on the basis that the July 2019 examination showed only symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, impaired judgement, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. However, the examiner noted that the Veteran’s expressions/responses appeared somewhat disjointed or jumbled and the Veteran endorsed continued periods of sadness/depression, a history of suicidal ideation, plan, and intent, and periods of anxiety with panic attacks three to four times per week. Even if the medical examination did show that the Veteran’s PTSD fell within the criteria for a 50 percent rating, that fact, in and of itself, would not justify the reduction. As set forth above, to warrant a reduction, the evidence must show that the Veteran’s service-connected PTSD materially improved overall, resulting in an improvement in his ability to function under the ordinary conditions of life and work. In this case, the Boards finds that the record is not sufficient to support a finding that the Veteran’s disability actually improved as of August 1, 2018, resulting in an improvement in his ability to function under the ordinary conditions of life and work. The examiner recorded no such finding and the Veteran has reported that he perceives no improvement in his symptomatology. Under these circumstances, the Board finds the evidence before the RO at the time of the May 2018 and September 2019 rating reduction decisions did not show an actual improvement in the Veteran’s service-connected PTSD warranting the reduction from 100 percent to 50 percent. In sum, the RO reduced the Veteran’s rating on the basis of medical information that did not clearly show any improvement observed at the time of the July 2019 VA examination, which would result in an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. Accordingly, since the burden is on VA to show that a rating reduction was warranted, and, for the reasons discussed above, VA failed to meet this burden, the 100 percent rating must be restored. Dofflemeyer, 2 Vet. App. at 277 (holding that where VA has reduced a veteran’s disability rating without observing the applicable law and regulations, such a rating is void and restoration is required). 6. Entitlement to SMC pursuant to 38 U.S.C. § 1114(s). In light of the above restoration of the 100 percent rating for the Veteran’s service-connected PTSD and pursuant to VA’s “well-established” duty to maximize a claimant’s benefits, the Board finds that the Veteran is entitled to an award of SMC. Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. In this case, the Veteran is in receipt of a 100 percent disability rating for a single disability. Additionally, the Veteran has other service-connected disabilities that combine to be independently rated at more than 60 percent. Thus, the criteria for SMC at the housebound rate are met. Accordingly, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) is granted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.