Citation Nr: 21023978 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 20-14 408 DATE: April 21, 2021 ORDER An earlier effective date of May 24, 2016 for a 100 percent evaluation for posttraumatic stress disorder (PTSD) is granted. Entitlement to retroactive payments for increased combined evaluation disability award from February 1, 2014 and March 1, 2014 pertinent to rating determinations of increased disability effective dates of January 9, 2014 and February 13, 2014 is denied. FINDINGS OF FACT 1. The evidence of record reflects that the Veteran met the criteria for a 100 percent evaluation for PTSD beginning no earlier than May 24, 2016. 2. Combined compensation benefits awards are effective the date the record shows an increased evaluation was determined (with pertinent payment from the first of the month following such determination). CONCLUSIONS OF LAW 1. The criteria for an effective date of May 24, 2016 for a 100 percent evaluation for PTSD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. 2. The criteria for a combined evaluation in excess of 60 percent, 80 percent, and 90 percent for the Veteran’s service-connected disabilities at the time of the October 2013, June 2014, and July 2015 rating decisions have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. § 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 2008 to December 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). From the outset the Veteran has expressed his discontent and frustration with VA and the handling of his claims. The Board hopes to address the Veteran’s concerns and explain the in-depth procedural history and current state of the Veteran’s claims. The Board is aware the Veteran may be displeased with the outcome presented herein, however the Board is bound by the law, it is without authority to grant benefits simply because it might perceive the result to be equitable. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425. Additionally, as the Veteran previously revoked power of attorney from the Veterans Service Organization representing him in October 2019, the Board wants to specifically notify and direct the Veteran to options available to him. The RO issued a February 2021 rating decision reducing the Veteran’s evaluation of service-connected PTSD from 100 percent to 70 percent, effective May 1, 2021. The Veteran has submitted correspondence documenting his frustration with the reduction and his contention the VA is biased and discriminatory. The Board has seen the Veteran’s correspondence but notes he has not yet filed a formal disagreement with the February 2021 rating decision. As the modernized review system (known by the Board as AMA) applies given the date of the rating decision, the Veteran is advised he may submit a supplemental claim, seek higher-level review, or appeal to the Board directly by filing a VA Form 10182 to appeal the February 21 rating decision that reduced his evaluation for PTSD to 70 percent. Effective Date 1. An earlier effective date of May 24, 2016 for a 100 percent evaluation for posttraumatic stress disorder (PTSD) is granted. The Veteran’s contentions throughout the record reflect he feels the effective date for this PTSD rating should correspond to the original effective date for the award of service connection for PTSD of December 9, 2012. The Board has concluded an earlier effective date for the grant of the 100 percent evaluation for PTSD is warranted to May 24, 2016, one year prior to the receipt of the claim that resulted in the 100 percent evaluation. That said, the Veteran contends the 100 percent evaluation should be assigned from the initial effective date for the grant of service connection for PTSD, December 9, 2012. The Veteran also contends he has been continuously appealing an earlier effective date for PTSD since the October 2013 rating decision. Neither the facts nor the law supports an effective date for the 100 percent rating prior to May 24, 2016. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For increased rating claims, an effective date for an increase may be granted up to one year prior to the claim if it is factually ascertainable that an increase in disability occurred during that period. Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129 (1992). In this regard, VA may not pay a benefit before a claim is made. 38 U.S.C. § 5101; Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377, 382 (1999); Brannon v. West, 12 Vet. App. 32, 35 (1998). More specifically, a medical examination report is only considered an informal claim for an increase in disability benefits if service connection has already been established for the disability. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006). Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. Crawford v. Brown, 5 Vet. App. 33, 35 (1995); KL v. Brown, 5 Vet. App. 205, 208 (1993). As noted above, the Veteran was granted entitlement to service connection in an October 2013 rating decision, with a 50 percent evaluation, effective December 9, 2012 (the day following his separation from service). The Veteran appealed this evaluation and a June 2014 rating decision granted an increased evaluation of 70 percent, effective February 13, 2014. A June 2018 rating decision increased the Veteran to a 100 percent evaluation for PTSD from May 24, 2017. May 25, 2017 was the date the Veteran filed a claim for entitlement to individual unemployability (TDIU) and as a result, PTSD was evaluated as well. In July 2018, the Veteran appealed the effective date of his PTSD, contending his evaluation of PTSD should be dated back to December 9, 2012, the original effective date for the disability. The Veteran has contended throughout the history of his claim that his effective date for PTSD was incorrect. Each time he received an increased rating, he reported the effective date was wrong. However, simply because an increase is awarded does not mean the evaluation will automatically be dated from the originally granted effective date. A veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Accordingly, separate ratings may be assigned for separate periods of time based on the facts found, which is a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran is in receipt of staged ratings for his PTSD. The effective date for the award of an increased rating will be the date of claim or the date entitlement arose, whichever is later. The Board acknowledges the Veteran’s arguments that he previously appealed the effective dates of the staged ratings he received for PTSD. However, the rating decisions referenced by the Veteran are final rating decisions. The Veteran filed multiple notices of disagreement as to the effective date of the 70 percent rating for PTSD awarded in the June 2014 rating decision. A January 2017 Statement of the Case was issued, continuing the effective date of February 13, 2014 for the award of 70 percent for PTSD. The SOC notified the Veteran that he must file his appeal within 60 days from the date of the SOC or the remainder of the one-year period of the date of the letter notifying him of the determination he wished to appeal. See 38 C.F.R. § 20.302 (b). A VA Form 9 (Appeal to Board of Veterans’ Appeals) was enclosed with the SOC. The SOC also detailed the appeal would be closed for failure to respond to the SOC and that an appeal consists of a timely received NOD and after the SOC is issued, a timely filed substantive appeal (VA Form 9). The Veteran did not file a substantive appeal (VA Form 9) within 60 days of the May 2018 SOC or the remainder of the one-year period following the August 2017 rating decision. Consequently, the June 27, 2014 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Given the above, the Veteran is seeking an earlier effective date stemming from a final rating decision. Only a request for revision based on clear and unmistakable error (CUE) can result in the assignment of an effective date earlier than the date of a final decision, as free-standing claims for earlier effective dates vitiate the rule of finality. Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Veteran has not asserted CUE in this case. To raise a valid CUE claim, the Veteran must first identify the alleged error in fact or in law with some degree of specificity and then provide persuasive reasons as to why the result, to which reasonable minds could not differ, would have been manifestly different but for that error. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). The Veteran may raise CUE at any time. See 38 C.F.R. § 3.105(a). However, as CUE has not been asserted here and the June 27, 2014 rating decision is final, the Board is bound by the laws and regulations that apply to Veterans’ claims and cannot address the Veteran’s contentions that his 100 percent evaluation for PTSD should date back to the original effective date of December 9, 2012. As a result of the Veteran filing a claim for TDIU on May 27, 2017, PTSD was evaluated and addressed in the June 2017 rating decision. An increased evaluation for PTSD was denied in the June 2017 rating decision and the Veteran filed a notice of disagreement as to his 70 percent evaluation and was seeking a rating of 100 percent. An August 2017 SOC was issued, and the Veteran filed a January 2018 VA Form 9 as to his increased evaluation for PTSD. The Veteran underwent a VA examination in June 2018 which the VA examiner determined the Veteran had total occupational and social impairment. A June 2018 rating decision granted the Veteran an evaluation of 100 percent dating back to May 24, 2017, the date the TDIU claim was initiated. The Veteran filed correspondence contending his 100 percent evaluation for PTSD should be effective from December 2012. He filed a NOD in July 2018. An SOC was issued February 2020 and the Veteran submitted a VA Form 9 in February 2020. Here, the Veteran’s VA treatment records document his treatment for PTSD. Reviewing the Veteran’s VA treatment records for the one year period to warrant an earlier effective rate for his 100 percent evaluation, the Board finds the evidence related to the Veteran’s PTSD to vary. In May 2016, the Veteran was seen regarding his anxiety. The records note he called the hospital often for his panic attacks and they discussed finding better ways of coping. The Veteran’s VA treatment records reflect he attended the career center in June 2016 and was starting a new job through a placement program. The Veteran was seen by mental health in June 2016 and he reported he was doing well and enjoyed working. In July 2016, the Veteran reported he was working on his non-profit and attending job interviews. He was not attending his placement job. The Veteran reported he wanted to step away from the placement position. The Veteran stopped attending his mental health appointments and the VA notified him they were closing his active treatment. In August 2016, the Veteran was seen in the emergency room for his anxiety. He had a follow-up phone call with urgent care regarding his anxiety. In September 2016, the Veteran reached out for mental health services. He was seen in mental health for his anxiety, the VA physician noted the Veteran suffers from chronic anxiety that frequently manifests with somatic symptoms for which the Veteran seeks out urgent care systems for treatment. A later September 2016 VA treatment note remarked the Veteran was making progress by enrolling in school and taking care of his infant daughter. Later, in October 2016, his VA treatment notes reflect concerns over his service-connected disabilities and housing concerns. In November 2016, a social work entry noted the Veteran had been arrested for domestic violence. Later in November 2016, the Veteran’s records reflect he called the after-hours center because he was feeling panicked. The Veteran responded with vague answers and he reported he thought he needed an ambulance and then he hung up on the nurse. He was seen in December 2016 regarding a recent panic attack. He reported he had heart palpitations and was seen in an emergency room but not admitted. In January 2017, the Veteran reported anxiety and stated he what trouble explaining how he felt but noted he was not taking his medication. In May 2017, the Veteran spoke to a homelessness prevention coordinator and vented about his frustration with the VA. The Veteran, while discussing his frustration with the VA, stated “that’s why a lot of Veterans are killing themselves and I’m getting to the end of my rope” but denied being suicidal. He stated he was frustrated and being evicted. May 24, 2016 begins the one year period prior to the grant of 100 percent for PTSD from May 24, 2017. As discussed above, the Veteran’s PTSD symptoms do reflect his symptoms varied in the period from May 24, 2016 to May 24, 2017. Around May 2016, the records reflect the Veteran was struggling with his panic attacks but trying to make improvements in his coping methods. He attempted to obtain a job through a VA placement program but did not ultimately continue. He was charged with domestic violence and was inconsistent in attending his mental health treatment and taking his medication. He also made concerning statements about his overall mental state in dealing with the VA and was later homeless. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because “[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology,” and the plain language of this regulation makes it clear that “the veteran’s impairment must be ‘due to’ those symptoms,” “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Although a veteran’s symptoms are the “primary consideration” in assigning a rating under § 4.130, the determination as to whether the veteran is entitled to a disability evaluation must also require an ultimate factual conclusion as to the veteran’s level of impairment. Id. at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126 (b). While the Veteran’s symptoms may reflect improvement in the Veteran’s condition, the Board notes the Veteran was given every consideration in his case, and considered the frequency, severity, and duration of the Veteran’s symptoms. The record beginning May 24, 2016 supports a finding the Veteran’s PTSD was productive of total social and occupational impairment. Based on the foregoing, the Board finds the Veteran’s symptoms, including his panic attacks, anxiety, chronic sleep impairment, inappropriate behavior, and danger of hurting self or others are productive of total occupation and social impairment effective May 24, 2016. As noted above, the Board cannot go back beyond May 24, 2016. Resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s PTSD has been productive of total social and occupational impairment since May 24, 2016, and the claim for an earlier effective date is granted. 2. Entitlement to retroactive payments for increased combined evaluation disability award from February 1, 2014 and March 1, 2014 pertinent to rating determinations of increased disability effective dates of January 9, 2014 and February 13, 2014 is denied. The Veteran raised an issue with his combined ratings in conjunction with his earlier effective date contentions. He filed a Notice of Disagreement in July 2018 regarding his combined ratings. He contends that when his combined evaluations increased from 60 percent to 80 percent and 80 percent to 90 percent, his payments for his disabilities should have dated back to December 2012. The Veteran supplied copies of correspondence he received dictating the benefit amounts paid and the effective dates. The Veteran submitted correspondence stating his effective dates should be the date his combined evaluations were changed. The Board finds it will be instructive to explain combined rating evaluations and their difference from individual disability ratings. The “Combined Ratings” regulation, 38 C.F.R. § 3.323, directs that “[w]hen there are two or more service-connected compensable disabilities a combined evaluation will be made following the tables and rules prescribed in the 1945 Schedule for Ratings Disabilities.” 38 C.F.R. § 3.323(a)(1). The combined ratings table in § 4.25 is one such table. 29 Fed. Reg. 6718-01. In creating this table, VA recognized that arithmetically adding disability ratings may result in a rating greater than 100 percent, which is impermissible. Instead, the table is designed to capture “the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity.” 38 C.F.R. § 4.25. Each disability receives its own rating, and then the multiple ratings are combined using the formula in the Table I. The figures appearing in the space where the column and the row intersect represent the combined value of the two. This combined value is then converted to the nearest number divisible by 10; combined values ending in 5 are adjusted upward. If there are more than two disabilities, the combined value of the first two disabilities is charted against the third disability using Table I. The same procedure is used if there are four or more disabilities. 38 C.F.R. § 4.25 (a). The combined rating then dictates the appropriate monthly compensation. Gazelle v. McDonald, 27 Vet. App. 461 (2016). The Veteran noted in his February 2020 substantive appeal (VA Form 9), he wished to “change the effective dates to January 19, 2014 and February 13, 2014.” It appears there is a misunderstanding as to how combined evaluations are created. As discussed above, the Veteran was granted service connection for PTSD in an October 2013 rating decision, he was evaluated at 50 percent, effective from December 9, 2012. He also received service connection for degenerative disc disease (DDD) at 10 percent, sinusitis at 10 percent, hyposmia noncompensable, tension and sinus headaches noncompensable, healed fracture, left fifth metacarpal noncompensable, right knee patellofemoral syndrome noncompensable, and left knee patellofemoral syndrome noncompensable, allergic rhinitis noncompensable, all with the same effective date of December 9, 2012. All the individual evaluations for each service-connected disability are accounted and the combined evaluation for compensation was 60 percent from December 9, 2012. In the June 27, 2014 rating decision, the Veteran’s PTSD was increased to 70 percent, effective February 13, 2014. This resulted in the Veteran’s combined evaluation for compensation to increase from 60 percent from December 9, 2012 to 80 percent from February 13, 2014 (the date of when the increased evaluation for PTSD was grated). When the individually service-connected disability increases, it can increase the combined evaluation for compensation, which is the total evaluation for all service-connected disabilities attributed to the Veteran. In a July 27, 2015 rating decision, the Veteran’s rating for radiculopathy of the left lower extremity was granted with an evaluation of 40 percent, effective January 19, 2014. As another service-connected disability was added to the Veteran’s file, this adjusted the Veteran’s combined evaluation for compensation. The combined evaluation increased to 90 percent, effective from February 13, 2014, which is the date his PTSD was previously elevated to 70 percent. The SOC concluded the effective dates for the combined evaluations for all the Veteran’s service-connected disabilities is proper based on the increased evaluations the Veteran received from both the June 2014 and July 2015 rating decisions. Based on the Veteran’s Form 9, his contention was that his effective dates should be January 19, 2014 and February 13, 2014. The Veteran has also argued the effective date should be December 9, 2012. The Board’s understanding is that the Veteran contends the effective date of his PTSD should be those dates, but the Veteran has been awarded staged ratings for his PTSD. The combined evaluations are a total accumulation of all the service-connected disabilities and have been determined correctly based on the effective dates assigned in the correlating rating decision. In August 2018, the Veteran requested an audit of his service-connected disabilities and payments issued. The Veteran contends there were multiple errors and he believes he was not paid appropriately for the increases in his disabilities as he contends the wrong effective dates were applied. As noted above, the effective dates for the combined evaluations correlate to when the service-connected disabilities are increased. In September 2019, the RO performed an audit of the Veteran’s retroactive payments. The RO concluded no other retroactive payments were due. The RO explained that on October 16, 2013, an initial rating decision granted service connection for PTSD, DDD, chronic sinusitis, healed fracture of the left fifth metacarpal, right knee patellofemoral syndrome, left knee patellofemoral syndrome, hyposmia, allergic rhinitis, and tension and sinus headaches. The total combined evaluation for all the disabilities granted in the October 2013 rating decision was calculated to be 60 percent, effective from December 9, 2012 (the effective date all the October 2013 rating decisions). A retroactive payment for $9,234.00 was issued October 22, 2013. A rating decision was issued June 27, 2014 which increased the evaluation of the Veteran’s PTSD to 70 percent with an effective date of February 13, 2014. February 13, 2014 is the date the VA received the Veteran’s request for an increased evaluation when the Veteran called in to file for an increased evaluation for PTSD and DDD. The Veteran’s DDD was not increased. As the Veteran’s PTSD was granted an increased evaluation, the combined evaluation also increased, with the effective date of when the PTSD’s new rating became effective, February 13, 2014. The Veteran’s combined evaluation was calculated to be 80 percent from February 13, 2014. A retroactive payment was made in the amount of $1,362.98 on April 1, 2014. A rating decision was issued July 27, 2015. The Veteran was granted service connection for radiculopathy of the left lower extremity with an evaluation of 40 percent, effective January 19, 2014 (the date entitlement arose based on a private report.) The Veteran’s evaluation for DDD remained the same. The Veteran’s combined evaluation for compensation increased to 90 percent, effective from February 13, 2014. A retroactive payment was made in the amount of $4,231.27 on September 4, 2015. As such, the retroactive payments that have been issued based on the increased evaluations the Veteran has been awarded are correct. As the Veteran’s evaluations for his disabilities increased, so did his combined evaluation. The correct combined evaluation for compensation for the Veteran is 60 percent from December 9, 2012, 80 percent from January 19, 2014, 90 percent from February 13, 2014, and 100 percent from May 24, 2017 (previously May 24, 2017 but as noted in this decision, the Board granted an earlier effective date of May 24, 2016). The Board hopes the explanation as to what combined evaluation for compensation is and the difference between individual disability ratings is helpful to the Veteran. The applicable regulation governing the evaluation of multiple service-connected disabilities is set forth at 38 C.F.R. § 4.25. This regulation instructs that simply adding the total evaluations for the various service-connected disabilities is not permitted. Rather, the Board must apply the Combined Ratings Table (Table) set forth in that regulation. To use the Table, a rating official first arranges the distinct service-connected disabilities in order of their individual evaluation, from the most severe to the least. Throughout the Veteran’s correspondence, he appears to confuse the issue of a combined evaluation effective date and individual disability effective dates. The Board is bound by the law, it is without authority to grant benefits simply because it might perceive the result to be equitable. As such, the Board finds the combined evaluations of 60 percent, 80 percent, and 90 percent for the Veteran’s service-connected disabilities at the time of the October 2013, June 2014, and July 2015 rating decisions respectively were correctly calculated under VA laws and regulations based on the service-connected disability evaluations in effect at that time. Therefore, combined evaluation increases are not warranted, and the appeal is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, 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.