Citation Nr: 21024541 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-04 600 DATE: April 23, 2021 ORDER The claim of entitlement to an earlier effective date for the award of service connection for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to an effective date earlier than September 2, 2015 for the award of a 100 percent disability rating for acquired psychiatric disability is denied. Entitlement to an effective date earlier than September 2, 2015 for the award of special monthly compensation (SMC) based on housebound criteria is denied. REMANDED A claim of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a statement received on October 26, 2020, the Veteran withdrew from appellate consideration a claim of entitlement to an earlier effective date for the award of service connection for PTSD. 2. On September 2, 2015, the Veteran claimed entitlement to a higher disability rating for service-connected disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal regarding the assignment of an effective date of service connection for PTSD are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. 2. The criteria for an effective date earlier than September 2, 2015 for the award of a 100 percent disability rating for acquired psychiatric disability are not met. 38 U.S.C. § 1155; 38 C.F.R. § 3.400. 3. The criteria for an effective date earlier than September 2, 2015 for the award of SMC based on housebound criteria are not met. 38 U.S.C. § 1155; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1988 to May 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2016 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified in a hearing before the Board. A transcript of the hearing is included in the electronic claims file and has been reviewed. In August 2020, the Board remanded this matter for additional development. The case is again before the Board for appellate review. Withdrawn claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn from appeal a claim of entitlement to an earlier effective date of service connection for PTSD. The Veteran initially raised the issue of an earlier effective date of service connection for PTSD in response to the February 2016 rating decision on appeal. He then appealed the issue to the Board in January 2017 in response to a November 2016 statement of the case (SOC). See 38 U.S.C. §§ 7104, 7105. In a statement received by the Board on October 26, 2020, however, the Veteran asserted that he did not want to appeal this issue. Hence, there remain no allegations of errors of fact or law for appellate consideration of the claim of entitlement to an earlier effective date of service connection for PTSD. Accordingly, the Board does not have jurisdiction to review the issue and it is dismissed. Earlier effective date The Veteran has been service connected for acquired psychiatric disability since July 1997. The disability has been rated as 70 percent disabling since December 2011. In September 2015, he asserted that a higher rating should be assigned for the disability (then rated as depressive disorder) and asserted that PTSD should be service connected as well. In the February 2016 rating decision on appeal, the RO granted entitlement to service connection for PTSD and awarded a 100 percent rating effective the date of claim. The RO also awarded SMC based on housebound criteria effective the same date. The Veteran contends that an earlier effective date is warranted for the increase in rating to 100 percent and for the award of SMC. Law and Regulations The applicable law and regulations concerning effective dates state in relevant part that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to this rule exists under 38 C.F.R. § 3.400(o)(2). This provision allows VA to assign an effective date for increased rating up to one year prior to the date of claim where medical evidence indicates an increase in disability during that time period. 38 C.F.R. § 3.400(o)(2) states: When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established. Id. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits. The amended rule requires that claims be made on a specific claim form prescribed by VA and available online or at a local RO. Prior to March 2015, a “claim” was defined broadly to include 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. To establish a claim, the claimant had to assert the claim expressly or impliedly. Brannon v. West, 12 Vet. App. 32, 35 (1998). Under regulations in effect prior to March 2015, a report of examination or hospitalization from VA, a private physician, or a state or other institution, may be accepted in certain circumstances as an informal claim for increased rating. 38 C.F.R. § 3.157. A report of examination or hospitalization under § 3.157 should “indicate that [a] veteran’s service-connected disability [has] worsened since the time it was last evaluated.” Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Moreover, the term “report of examination” under § 3.157 “implies that the medical record in question must describe the results of a specific, particular examination.” Generally, a claim which has been denied in an unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). Final decisions will be accepted by VA as correct with respect to the evidentiary record and the law that existed at the time of the decision, in the absence of clear and unmistakable error. At any time after a decision is final, the claimant may request, or VA may initiate, review of the decision to determine if there was a clear and unmistakable error (CUE) in the decision. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Evidence and analysis The record in this matter indicates that an earlier effective date for the award of a 100 percent rating and SMC is unwarranted. In 2011, the Veteran filed multiple statements indicating an interest in increased ratings for service-connected psychiatric disability and indicating an interest in entitlement to service connection for several other disorders. In a September 2012 rating decision, the RO addressed several issues including an increased rating claim for service-connected depressive disorder, a claim of entitlement to service connection for PTSD under 38 U.S.C. § 1151, and claims of entitlement to service connection for chronic fatigue syndrome (CFS) and irritable bowel syndrome (IBS). The RO denied these service connection claims but granted an increased rating of 70 percent effective in December 2011 for psychiatric disability. The Veteran filed a notice of disagreement (NOD) against the decision. In an October 2012 statement, he clarified the NOD, stating that he only wanted to appeal the claims of entitlement to service connection for CFS, IBS, and PTSD. In the statement he also asserted entitlement to a TDIU, which the RO denied in a subsequent November 2012 rating decision. A subsequent January 2014 memorandum of record confirms the NOD and the interest in a TDIU. In June 2014, the RO issued a SOC addressing the NOD pertaining to claims of entitlement to service connection for CFS, IBS, and PTSD. The Veteran did not file a substantive appeal against the SOC. Further, with regard to the rating for psychiatric disability in the September 2012 rating decision, no evidence indicating total social and occupational impairment was included in the claims fine between September 2012 and September 2013. See 38 U.S.C. § 7105; 38 C.F.R. § 3.156(b). As such, the September 2012 rating decision – addressing CFS, IBS, PTSD, and service-connected psychiatric disability – is final. See 38 U.S.C. §§ 7104, 7105. The next claim submitted by the Veteran concerning psychiatric disability is the September 2015 claim now on appeal. In response to the claim, the RO awarded a 100 percent rating for acquired psychiatric disability (now including PTSD) and SMC. The Veteran maintains that an earlier effective date is warranted for the increased ratings. The Board disagrees. In determining the effective date for the award of higher ratings in this matter, neither the date of onset of disability nor the date of original claim is controlling. Rather, the primary focus is on the date of claim for increased rating. That is the “later” date. 38 C.F.R. § 3.400. September 2, 2015 is the date on which VA received the Veteran’s assertions that higher disability ratings were due for his psychiatric disability. This is the claim considered in the February 2016 rating decision granting higher ratings. The Board has searched the record for an earlier claim of entitlement to an increased rating for service-connected psychiatric disability. In several statements dated in late 2012 and early 2013, the Veteran argued that he deserved a higher rating for psychiatric disability. These statements came after the September and November 2012 rating decisions. But as noted earlier, he clarified in the October 2012 statement that he did not want to pursue the decision regarding the rating of psychiatric disability. And this is confirmed in the January 2014 memorandum noting the Veteran’s interest in pursuing just the service connection claims for PTSD, CFS, and IBS, and noting his interest not in an increased rating for psychiatric disability, but in a TDIU. Further, none of the Veteran’s submissions – dated between the September 2, 2015 submissions and September 2013, when the appeal period expired after the final September 2012 rating decision – indicates an express or implied claim of entitlement to an increased rating for psychiatric disability. See Brannon, supra. Moreover, the record does not contain a medical report dated between September 2013 and September 2015 indicating total disability due to psychiatric disability. The record contains VA treatment records dated during this period, but none indicates total disability or that the Veteran was housebound due to psychiatric disability. Rather, the records indicate that the Veteran continued to be fully oriented, communicative, cognitively sound, capable of reasoning, and coherent. See 38 C.F.R. §§ 3.157, 3.400. Indeed, the records show the Veteran as fully engaged in treatment of his several medical problems, psychiatric and non-psychiatric. Finally, the Veteran has not challenged an earlier rating decision based on CUE. In the August 2020 remand, the Board sought information regarding CUE based on previous statements by the Veteran. In response, in an October 2020 letter to the Veteran, the RO sought information regarding whether the Veteran was interested in claiming CUE in an earlier rating decision. The Veteran did not respond to the letter. As such, there is currently no challenge of a previous rating decision based on CUE. See 38 C.F.R. § 3.105. The rating decisions of record, dated September 2012 and earlier, stand as final, therefore. 38 U.S.C. §§ 7104 (b), 7105(c). Thus, the appropriate effective date here is the date of the claim for increased rating following the final September 2012 rating decision and unappealed June 2014 SOC. That date is September 2, 2015. 38 C.F.R. § 3.400. As such, the claim of entitlement to an earlier effective date for the grant of SMC and for the award of a 100 percent rating for psychiatric disability is denied. REASONS FOR REMAND A claim of entitlement to a TDIU is remanded. In a November 2012 rating decision, the RO denied entitlement to a TDIU. In a December 2012 statement the Veteran expressed disagreement with the decision. Although the RO readjudicated the issue in a February 2016 rating decision, the RO has not issued a SOC in response to the NOD. See Manlincon v. West, 12 Vet. App. 238, 240 (1999) (a NOD is a jurisdiction-conferring document that required remand rather than referral). The matter is REMANDED for the following action: Issue a SOC to the Veteran and his representative addressing the claim of entitlement to a TDIU addressed in the November 2012 rating decision and December 2012 NOD. The Veteran must be advised of the time limit in which he may file a substantive appeal. Then, only if an appeal is timely perfected, should the issue be returned to the Board for further appellate consideration, if otherwise in order. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher McEntee, 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.