Citation Nr: 21032101 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-47 964 DATE: May 25, 2021 ORDER Entitlement to an effective date earlier than March 30, 2017 for the assignment of a 50 percent rating for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an initial compensable rating for left tibia/fibula fracture is remanded. Entitlement to service connection for a right ankle or leg disorder, to include as secondary to service connected left tibia/fibula fracture, is remanded. Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDING OF FACT The Veteran filed a claim for an increased rating for PTSD which was received by VA on March 30, 2017 and it is not factually ascertainable that the Veteran's PTSD increased in severity warranting a 50 percent rating within the year prior to the receipt of his March 30, 2017 claim. CONCLUSION OF LAW The criteria for an effective date earlier than March 30, 2017 for the assignment of a 50 percent rating for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.157, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2005 to November 2013, to include service in Southwest Asia. The Veteran's awards and decorations for his service include a Combat Infantryman Badge and a Valorous Unit Award, among many others. These matters come to the Board of Veterans' Appeals (Board) on appeal from October 2015 and August 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal is currently with the RO in Muskogee, Oklahoma. The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) of the Board in November 2020. A transcript of the hearing has been associated with the claims file. In an August 2017 rating decision, the Agency of Original Jurisdiction (AOJ) erroneously relayed that, "(e)ntitlement to individual unemployability is moot because your service-connected disabilities are evaluated as 100 percent disabling and no potential entitlement to an earlier effective date for a total disability evaluation based on a grant of individual unemployability is warranted by the evidence of record." The Board notes that the Veteran is currently in receipt of a combined 100 percent schedular rating beginning on March 30, 2017. The Board also notes that the Veteran has service connection and increased rating claims pending with the Board. These issues may have an effect on his eligibility for assignment of additional compensation. In this regard, a TDIU award if based on a single disability may warrant a potential special monthly compensation allowance; therefore, the issue is not moot. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). That is, if the Veteran establishes that a total rating for a single disability and has additional service-connected disabilities with a combined service-connected evaluation of 60 percent or more, he may be eligible for special monthly compensation at the statutory housebound rate. Accordingly, the Board finds that the issue for entitlement to a TDIU remains on appeal. Finally, the Board notes that the Veteran's attorney appears to raise the issue of clear and unmistakable error (CUE) in a September 2015 rating decision in a November 2020 submission. The record shows that this issue has not been adjudicated by the AOJ. If the Veteran and his attorney wish to pursue a CUE Motion, they are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1(p), 3.155, 3.160. Earlier Effective Date Increased Rating for PTSD The Veteran asserts that an effective date earlier than March 30, 2017 is warranted for the grant of an increased 50 percent rating for his PTSD. Specifically, the Veteran and his attorney seem to assert that the September 2015 rating decision granting entitlement to service connection for specified anxiety disorder (any acquired mental disorder, to include PTSD) is not final, and therefore the grant of an increased rating to 50 percent should date to the grant of service connection as an initial rating. See VA Form 21-4138 Statement in Support of Claim, November 11, 2020; see also Board hearing transcript, November 16, 2020; see also VA Form 9, September 26, 2017; and see also Notice of Disagreement, July 27, 2018. In this regard, the Veteran's attorney seems to assert that the July 2017 VA psychiatric examination constitutes new and material evidence as to the September 2015 rating decision and hence that the September 2015 rating decision is not final. See Board hearing transcript, November 16, 2020. For increased rating claims, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). However, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (finding that a veteran's claim for increased disability compensation must have occurred during the one year prior to the date of the veteran's claim in order for the veteran to receive the benefit of an earlier effective date). If the increase occurred after the date of the claim, the effective date is the date of increase. 38 C.F.R. § 3.400(o)(2); Harper, 10 Vet. App. 126-27. The effective dates for "staged" ratings are established using the principle set forth at 38 C.F.R. § 3.400(o)(2), that is, the earliest date that it is factually ascertainable that the criteria for each disability rating were met. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). If a claimant wishes to obtain an effective date earlier than that assigned in a rating decision, the claimant must file a timely appeal to that decision or submit new and material evidence within the one year appeal period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302. Otherwise, the decision becomes final, and the only basis for challenging the effective date is a motion to revise the decision on the basis of clear and unmistakable error in the decision assigning the effective date or in a prior decision, the reversal of which would result in an earlier effective date. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.105, 20.1400. A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). An informal claim must identify the benefits sought; and upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. Id. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations apply to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA after March 24, 2015 date, the new regulations apply. Prior to March 24, 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(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). 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, 134 (1992). According to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital can be accepted as an informal claim for increased benefits. See Servello at 199. The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(2). A "report of examination or hospitalization" under § 3.157(b) 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(b) "implies that the medical record in question must describe the results of a specific, particular examination." A letter may qualify if it, for instance, was "generated in connection with any particular VA medical examination" rather than, for example, a "claim for Social Security disability benefits that was pending at the time it was written." Massie, 25 Vet. App. At 133. Other considerations include whether the letter relates "the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation," rather than "present[ing] a very short summation of [the Veteran's general condition, as [the physician] had observed it over" time. Id. The general rule for claims for increased ratings is that the award is effective the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date, otherwise, the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, supra, some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). By way of background, the Veteran filed claim for entitlement to service connection for "any acquired mental disorder, including PTSD" in January 2015. In a September 2015 rating decision, the AOJ granted entitlement to service connection for specified anxiety disorder (any acquired mental disorder, to include PTSD), and assigned an initial 30 percent rating, effective November 24, 2013. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Therefore, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. On March 30, 2017, the Veteran filed a claim for an increased rating for his anxiety. In an August 2017 rating decision, the AOJ assigned a 50 percent rating for PTSD (previously rated as specified anxiety disorder (any acquired mental disorder, to include PTSD)), effective March 30, 2017, the date the claim for an increased rating was received by VA. The Veteran has not alleged, and the record does not suggest, that a claim for increase was filed prior to March 30, 2017. The record fails to demonstrate a factually ascertainable increase in the severity of the Veteran's PTSD within the year prior to March 30, 2017 so as to warrant a 50 percent rating. Specifically, a July 2017 VA examination fails to demonstrate such an increase. The Veteran reported during the July 2017 VA examination that he did not receive treatment for mental health issues and that he was opposed to the use of psychiatric medications and the examiner found that the new diagnosis of PTSD was a correction of a previous erroneous diagnosis. Moreover, the Board notes that the AOJ assigned a 50 percent rating based on the results contained within a July 2017 VA examination report. Thus, the Board finds that it had not become factually ascertainable that the Veteran's PTSD had increased in severity to warrant a 50 percent rating prior to March 30, 2017. Upon review of the record, no formal or informal claim for an increased rating for the Veteran's PTSD was received between the issuance of the September 2015 and prior to March 30, 2017. See 38 C.F.R. §§ 3.151, 3.155, 3.157; Massie v. Shinseki, supra. As noted in the July 2017 VA examination report, the Veteran did not receive mental health treatment and the Board notes that there are no associated VA treatment records dated between March 2016 and March 2017. Although there is a July 2016 private psychological evaluation contained within the Veteran's Social Security Administration (SSA) records, such was not received by VA until May 2017 and cannot serve as the basis of effective date earlier than March 30, 2017. 38 C.F.R. § 3.157(b)(2). Therefore, an earlier effective date for the award of a 50 percent rating for PTSD is not warranted. The Board notes the arguments of the Veteran's attorney that the September 2015 rating decision granting entitlement to service connection for PTSD is not final due to receipt of new and material evidence, namely, the July 2017 VA examination report showing a correction of the Veteran's diagnosis of anxiety disorder. However, as noted above, if a claimant wishes to obtain an effective date earlier than that assigned in a rating decision, the claimant must file a timely appeal to that decision or submit new and material evidence within the one year appeal period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302 (emphasis added). Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision on the basis of clear and unmistakable error in the decision assigning the effective date or in a prior decision, the reversal of which would result in an earlier effective date. 38 U.S.C. §§ 5109A, 7111; 38 C.F.R. §§ 3.105, 20.1400. Again, as noted above, the Veteran was provided notice of the September 2015 rating decision and his appellate rights but did not appeal the decision or submit new and material evidence within one year of the decision. Even if the July 2017 VA examination report were to be considered new and material evidence, it was received well beyond one year from the September 2015 rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. This argument is therefore without merit. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to an effective date earlier than March 30, 2017 for the assignment of a 50 percent rating for PTSD is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Increased Rating Left Tibia/Fibula Fracture The Veteran was most recently afforded an examination for his left tibia/fibula fracture in October 2015. At his November 2020 Board hearing, it was indicated that the Veteran's left tibia/fibula fracture had worsened since his VA examination. Specifically, the Veteran testified that his symptoms included pain, limited range of motion, losing his balance, and instability. As the above evidence indicates a possible worsening of that the Veteran's left tibia/fibula fracture since his last VA examination, an additional examination should be afforded to gauge the current level of severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). 2. Service Connection Right Ankle/Leg Disorder The Veteran seeks service connection for a right ankle/leg disorder, to include as secondary to his service-connected left tibia/fibula fracture. Specifically, the Veteran testified that he overcompensated and damaged his right ankle/leg, due to the severity of his left tibia/fibula fracture. See Board hearing testimony, November 16, 2020. To date, an etiology opinion has not been obtained. In light of the foregoing, the Board concludes that the Veteran should be afforded a VA examination to determine the nature and etiology of the claimed right ankle/leg disorder. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir., 2018). 3. TDIU Regarding the TDIU issue, the Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Hence, a determination on the claim for TDIU should be deferred pending final dispositions of the claims of entitlement to an increased rating for a left tibia/fibula fracture and entitlement to service connection for a right ankle/leg disorder. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, forward the Veteran's record to a qualified medical examiner to address the following questions as to the claims for an increased rating for a left tibia/fibula fracture. The examiner must provide all findings, along with a complete rationale for the opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. (A) The examiner should identify the current nature and severity of all manifestations of the Veteran's left tibia/fibula fracture. (B) The examiner should record the range of motion of the left ankle in all relevant planes observed on clinical evaluation in terms of degrees. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If there is clinical evidence of pain on motion, or any of the other above-noted symptoms, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case he or she should clearly explain why that is so. (C) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (D) If the Veteran endorses experiencing flare-ups of his left ankle, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. (E) The examiner should also indicate whether ankylosis of the ankle, ankylosis of the subastragalar or tarsal joint, malunion of os calcis or astragalus, or astragalectomy are present and, if so, the severity of such impairment(s). (F) The examiner should comment upon the functional impairment resulting from the Veteran's left tibia/fibula fracture. A rationale for any opinion offered should be provided. 3. Following the receipt of outstanding records, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's claimed right ankle/leg disorder. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The need for further in-person examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following questions: (A) Is at least as likely as not (50 percent or greater probability) that the Veteran's right ankle/leg disorder had its onset during any period of service, or is otherwise related to such period of service? The examiner should discuss the significance, if any, of the Veteran's combat experiences. (B) Is at least as likely as not (50 percent or greater probability) that the Veteran's right ankle/leg disorder was caused or permanently aggravated by his service-connected left tibia/fibula fracture? The examiner should specifically address the Veteran's contention that his left tibia/fibula fracture caused him to alter his gait and favor his right ankle/leg. In offering such opinions, the examiner should consider the lay statements of record. Any medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; any medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). (Continued on the next page) The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.