Citation Nr: 21026894 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 19-29 082A DATE: May 4, 2021 ORDER Entitlement to an effective date prior to April 10, 2018, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an initial compensable disability rating for asbestosis related pulmonary fibrosis with obstructive sleep apnea (OSA) and in excess of 50 percent from December 19, 2019 is remanded. Entitlement to an effective date prior to April 10, 2018, for an award of a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. On February 11, 2018, the Veteran submitted a VA Form 21-0781 Statement in Support of Claim for PTSD. 2. On April 10, 2018, the Veteran submitted an "Intent to File" for compensation benefits. 3. On June 11, 2018, the Veteran submitted a complete VA Form 21-526EZ, Fully Developed Claim, asserting entitlement to service connection for PTSD. CONCLUSION OF LAW The criteria for an effective date of April 10, 2018, for the award of service connection for PTSD are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the May 1966 to May 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from July 2018 and September 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The July 2018 rating decision granted service connection for PTSD and the September 2018 decision granted service connection for respiratory disability, characterized as pleural thickening. 1. An effective date prior to April 10, 2018, for the award of service connection for PTSD is denied. The current effective date of service connection for the Veteran's award of service connection for PTSD is April 10, 2018. See September 2018 Rating Decision. The Veteran contends the effective date for service connection for PTSD should be February 11, 2018. See November 2018 Correspondence. The law regarding effective dates states that, 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). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim 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. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a)(1); 38 C.F.R. § 3.151(a). In February 2018, the Veteran filed a VA Form 21-0781 Statement in Support of Claim for PTSD. On April 10, 2018, he filed an "intent to file". See April 11, 2018 Correspondence. He then filed a June 2018 VA Form 21-526EZ and claimed PTSD. See February 2018 Form 21-0781; see also June 2018 VA Form 21-526EZ. If VA receives a complete application form prescribed by the Secretary, as defined in paragraph (a) of §3.160, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b). Here, the Veteran did not file within the meaning of 38 C.F.R. § 3.155(b), which states written intent on prescribed intent to file a claim form, a VA Form 21-. The submission to an agency of original jurisdiction of a signed and dated intent to file a claim, on the form prescribed by the Secretary for that purpose, will be accepted as an intent to file a claim. In this case, the Veteran did not file an intent to file in February 2018 to preserve his effective date. Instead, he filed a VA Form 21-0781. The Board observes that the Veteran filed a complete VA Form 21-526EZ, Fully Developed Claim, days earlier asserting entitlement to compensation for vision problems due to his service-connected diabetes mellitus. He filed another on May 31, 2018, claiming entitlement to service connection for respiratory issues before ultimately claiming service connection for PTSD in June 2018. The failure to submit a completed application for PTSD prior to June 2018 was not for lack of claims form or the knowledge of how to complete one. The Veteran argues that submission date of his statement in support of his claim of service connection for PTSD should be used to assign the effective date of the award. See November 2018 Notice of Disagreement; see also October 2019 Statement accompanying VA Form 9. However, the Veteran offers no rationale for his failure to comply with VA's formalized claims filing regulations, despite having been represented by an attorney at that time. There being no claim earlier than June 2018 and no intent to file prior to April 10, 2018, to which the June 2018 claim may be related, the Board finds preponderance of the evidence demonstrates that the date of claim can be no earlier than April 10, 2018. The Board concludes that the criteria for an effective date for the award of service connection for PTSD prior to April 10, 2018, are not met. See 38 C.F.R. § 3.400. REASONS FOR REMAND 1. Entitlement to an initial compensable disability rating for obstructive sleep apnea (OSA) with asbestosis related chronic obstructive pulmonary disorder (COPD) and in excess of 50 percent from December 19, 2019 is remanded. During the pendency of the appeal, the Veteran's respiratory disability, determined to asbestosis related pulmonary fibrosis, has been evaluated under different diagnostic codes. His disability was initially evaluated under 6699-6604 for diffuse pleural thickening, then under 6845-6833 for asbestosis with pulmonary fibrosis, and finally under the diagnostic code for obstructive sleep apnea (OSA) with asbestosis pulmonary fibrosis. He was assigned a 50 percent evaluation effective December 18, 2020. The provisions of 38 C.F.R. § 4.96(a) specifically prohibit the assignment of separate evaluations for diffuse pleural thickening due to asbestosis (6699-6604), pulmonary fibrosis (6845-6833), and obstructive sleep apnea (6845-6847). See 38 C.F.R. § 4.96. (Ratings under Diagnostic Codes 6600 through 6817 and 6822 through 6847 cannot be combined with each other). The Board is bound by 38 C.F.R. § 4.96(a), which specifically prohibits the assignment of separate evaluations for COPD, pleural fibrosis, and obstructive sleep apnea. However, if two diagnostic codes are applicable to the same disability, the diagnostic code that allows for the higher disability rating applies. See 38 C.F.R. § 4.7. The Veteran was last afforded VA examinations in September 2019, however, the examiner utilized pulmonary function testing (PFT) results from April 2018, which are the only PFT results associated with the claims file. See April 2018 PFT; see also September 2019 Examination. The Veteran contends his disability is worse than currently evaluated, that the September 2019 examination is inadequate due to a failure to identify additional respiratory disability due to pneumonia, and that he is willing to report for a VA examination. See September 2019 Statement. The Board agrees that a remand is necessary to afford the Veteran an opportunity to undergo a VA examination with a pulmonary function test to assess the current nature, extent and severity of asbestosis with pulmonary fibrosis, and OSA. This will allow for VA to consider the proper evaluation based on current severity, to include the consideration of which diagnostic code will provide the higher evaluation under the law. The Veteran has argued that he is entitled to a TDIU for the period prior to April 10, 2018. The rating period for his OSA with asbestos related COPD begins with the effective date of service connection, July 18, 2017. Thus, the Veteran may receive a TDIU for this period, if the evidence supports such a rating. This matter is inextricably intertwined with his claim for an increased rating for the service-connected OSA with asbestos related COPD. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending adjudication. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records 2. Schedule the Veteran for a VA examination, to include necessary pulmonary function tests, to evaluate the current severity of his service connected OSA with asbestosis COPD. 3. If the Veteran does not meet the criteria for a schedular TDIU prior to April 10, 2018, refer to the Director of Compensation Service the matter of whether TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) for the period the Veteran did not meet the schedular criteria. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.