Citation Nr: 21030376 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 19-15 732 DATE: May 18, 2021 ORDER An effective date prior to March 18, 2015 for the assignment of a 50 percent rating for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a disability rating in excess of 50 percent for the period prior to April 11, 2019 for PTSD is remanded. Entitlement to a disability rating in excess of 70 percent for the period from April 11, 2019 for PTSD is remanded. FINDINGS OF FACT 1. In an unappealed December 5, 2013 rating decision, the Veteran was granted a 30 percent disability rating, but no higher, for service-connected PTSD from May 31, 2006. 2. On March 18, 2015, the Veteran filed an informal claim for benefits; thereafter, on April 6, 2015, the Veteran filed a formal claim for an increased rating for PTSD; and the Veteran's PTSD rating was increased to 50 percent, effective March 18, 2015, the date of the informal claim. 3. It is not factually ascertainable that an increase in the severity of the Veteran's PTSD disability occurred within the one-year period preceding his March 18, 2015 informal claim. CONCLUSION OF LAW The criteria for an effective date earlier than March 18, 2015, for the assignment of the 50 percent rating for PTSD are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1967 to May 1970, including service in the Republic of Vietnam. As received from the Department of Veterans Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ), there were four issues on appeal, including a claim for a rating for PTSD in excess of 50 percent prior to April 11, 2019 and a claim for an effective date for the 70 percent rating for PTSD prior to April 11, 2019, which is redundant. See Statement of the Case (SOC) dated May 20, 2019. These two claims are recharacterized by the Board as a single claim for entitlement to a disability rating in excess of 50 percent for the period prior to April 11, 2019. Subsequent to the May 2019 SOC, additional VA treatment records relevant to the Veteran's claim for increased ratings for PTSD were associated with the electronic claims file without a waiver of initial consideration by the AOJ. In March 2021, the Board attempted to solicit from the Veteran a waiver of AOJ consideration of these records; however, the Veteran responded by requesting that the case be returned to the AOJ for review of the additional evidence. Therefore, the Board may not consider the evidence in the first instance. 38 C.F.R. § 20.1305(c). This additional evidence is not pertinent to the earlier effective date issue on appeal, and thus, the Board may proceed to adjudicate that issue. See 38 C.F.R. § 20.1305(c). Earlier Effective Date PTSD 50 Percent Rating VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Regulations also provide that 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 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In determining when an increase is "factually ascertainable," VA will look to all of the evidence of record as to when the increase took place. VAOPGCPREC 12-98. The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). There are three possible dates for an increased rating that may be assigned depending on the facts of the case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-8 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R. § 3.157. See Fed. Reg. 57,660, 57,695 (Sept. 25. 2014). The amendments are effective for claims and appeals filed on or after March 24, 2015. Here, the Veteran submitted a formal claim for service connection for PTSD that was received on May 31, 2006. The AOJ denied service connection in December 2006 and the Veteran appealed. In June 2009, the Board granted service connection for PTSD, and in a July 2009 rating decision, the AOJ implemented the Board's decision assigning a noncompensable evaluation effective in May 31, 2006, the date of receipt of the Veteran's claim. In August 2009, the AOJ scheduled the Veteran for a review PTSD examination, which was conducted on August 11, 2009. Thereafter, the AOJ increased the Veteran's PTSD rating to 30 percent, effective, August 11, 2009, the date of the reexamination. See Rating Decision dated August 18, 2009. In September 2009, the Veteran submitted a Notice of Disagreement (NOD), asserting that the assigned 30 percent rating for PTSD should be effective as of the date of his claim on May 31, 2006. See NOD received September 14 ,2009. In a December 2013 rating decision, the AOJ granted an effective date of May 31, 2006 for the 30 percent rating, which was a full grant of the benefits sought on appeal and provided the Veteran notice about how to appeal the decision. See Rating Decision dated December 5, 2013; VA correspondence dated January 21, 2014. The AOJ did not issue an SOC. 38 C.F.R. § 19.26(d) (AOJ will prepare SOC unless disagreement is resolved by grant of benefits sought on appeal or NOD is withdrawn). The December 2013 rating decision was not appealed and became final one year after the AOJ's January 16, 2014 rating notification letter. 38 C.F.R. § 20.1103. Thereafter, VA received the Veteran's informal claim for benefits on March 18, 2015, followed by receipt on April 6, 2015 of a formal claim requesting an increased rating for PTSD. The AOJ increased the Veteran's PTSD rating to 50 percent, effective March 18, 2015, the date of the informal claim. In July 2015, the Veteran submitted an NOD asserting entitlement to a higher rating and an earlier effective date for the rating, and this appeal ensued. The Board finds that there was no pending or unadjudicated formal or informal claim for an increased rating for PTSD greater than 30 percent prior to the Veteran's March 18, 2015 claim. As noted above, an effective date for an increase in compensation can only predate the date of receipt of the claim if there is a "factually ascertainable" increase in the condition in the year prior to the date of the receipt of the claim. The evidence dated up to one year prior to the period on appeal commencing March 18, 2015, including the Veteran's treatment records, lay statements reflected therein, and his claims for compensation, do not reflect that the Veteran's PTSD symptoms approximated occupational and social impairment with reduced reliability and productivity, the criteria specified under the General Rating Formula for Mental Disorders for a 50 percent rating. See 38 C.F.R. § 4.130. Thus, the Board finds the evidence does not suggest a factually ascertainable increase in the Veteran's PTSD during the one year period prior to the March 18, 2015 receipt of the claim for an increased rating. Accordingly, an effective date prior to March 18, 2015 for the assignment of a 50 percent rating for PTSD is not warranted. See 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.71a. REASONS FOR REMAND The Veteran's increased rating claims are not yet ready for appellate consideration in light of new relevant VA evidence having been associated with the electronic claims file subsequent to the May 2019 SOC. As the Veteran expressly requested in April 2021 that the case be returned to the AOJ for review of the additional evidence, the Board may not consider the evidence in the first instance. 38 C.F.R. §§ 19.31, 19.37, 20.1305(c). The matters are REMANDED for the following actions: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, readjudicate the remanded claims. If the benefits sought on appeal cannot be granted in full, return the claims to the Board for further appellate consideration. S. Merrick Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell 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.