Citation Nr: 21032192 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-54 087 DATE: May 26, 2021 ORDER Entitlement to an effective date of July 21, 2016 for the assignment of a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. REMANDED The claim of entitlement to service connection for a neck disability is remanded. The claim of entitlement to service connection for a right knee disability is remanded. The claim of whether new and material evidence has been received to reopen a claim of entitlement to service connection for low back pain is remanded. The claim of entitlement to a rating greater than 70 percent for PTSD is remanded. FINDINGS OF FACT 1. The Agency of Original Jurisdiction (AOJ) received the Veteran's claim for an increased rating for PTSD on August 18, 2016. 2. From July 21, 2016, it was factually ascertainable that the Veteran's PTSD was 70 percent disabling. CONCLUSION OF LAW The criteria for entitlement to a July 21, 2016 effective date for the assignment of a 70 percent rating for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 2001 to March 2005. His claims come before the Board of Veterans' Appeals (Board) on appeal of an October 2016 Department of Veterans Affairs (VA) rating decision. The Veteran testified in support of these claims during a hearing held before the undersigned Veterans Law Judge at the AOJ in February 2020. Entitlement to an effective date prior to August 18, 2016 for the assignment of a 70 percent rating for PTSD In an August 2015 rating decision, the AOJ granted the Veteran service connection for PTSD and assigned that disability an initial 50 percent rating. The AOJ notified the Veteran of this rating decision in a letter dated August 7, 2015. The AOJ next heard from the Veteran, through his representative, on August 18, 2016, when it received a claim of entitlement to an increased rating for PTSD. In an October 2016 rating decision, the AOJ increased the 50 percent rating assigned the Veteran's PTSD to 70 percent, effective from August 18, 2016, the date of receipt of the claim for an increased rating. The Veteran contends that an earlier effective date should be assigned on the basis that he never received notification of the August 2015 rating decision. He testified that he was all over the place in 2015, living in various places, including in his car and in different states (moved from Georgia to Massachusetts). He further testified that he registered with VA in Boston in 2014, changed his address at a Massachusetts post office, and sometime after a July 16, 2016 VA examination, filed disagreement with the August 2015 rating decision. The evidence supports this claim but not on the basis asserted. In general, the effective date of an award of increased compensation shall be the earliest as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from that date. Otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o); Harper v. Brown, 10 Vet. App. 125 (1997). Therefore, in this case, determining an appropriate effective date for the 70 percent rating under the pertinent regulations involves: (1) knowing when the claim for the increased rating was received; and (2) when the criteria for the 70 percent rating were met. See 38 C.F.R. §§ 3.155, 3.400(o)(2). Here, as noted above, the AOJ received the claim at issue on August 18, 2016. The question remaining is whether, during the year preceding the filing of this claim, from August 18, 2015 to August 18, 2016, the criteria for a 70 percent rating for PTSD were met, allowing for the assignment of an effective date prior to August 18, 2016 for that rating. During this time period, the Veteran sought medical treatment for a variety of physical complaints. Between August 18, 2015 and July 20, 2016, however, he was working and never mentioned his mental state except to respond negatively to customary questioning of whether he had been having thoughts of hurting himself or others. On July 21, 2016, he visited his primary care doctor for a wellness visit, during which he reported feeling a disconnect from life and experiencing suicidal ideation with a plan. His mother had advised him to request a mental health therapist while at the clinic. There, personnel ordered him an ambulance, and he was transported to an emergency room for an evaluation and subsequent psychiatric admission. The admitting psychiatrist noted that the Veteran had severe depression, an exacerbation of his PTSD and suicidal ideation with a plan and means (weapon at home) and was a threat to himself and others. The psychiatrist based this conclusion partially on findings that the Veteran had a numb mood, flattened affect, poor judgment, occasional hallucinations (hears voices of familiar people), a recent or impending loss of both a job/financial support and social support (mother searching for new job out of state and friend had died), a sense of hopelessness and frequent lack of interest in doing things. These findings establish occupational and social impairment with deficiencies in most areas, including work, judgment, thinking and mood, the criteria for a 70 percent rating under 38 C.F.R. § 4.130, DC 9411. These treatment records show that, from July 21, 2016, it was factually ascertainable that the Veteran's PTSD was 70 percent disabling, entitling him to an effective date of July 21, 2016 for the assignment of the 70 percent rating. During his hearing, however, he presented testimony in support of an even earlier effective date. He asserted that he filed disagreement with the August 2015 rating decision granting service connection for PTSD, presumably to be assigned an effective date corresponding to the date the AOJ received the claim for this benefit in 2013. This argument fails. First, there is no notice of disagreement of record referring to the August 2015 rating decision. As noted above, between August 2015, when the AOJ issued its rating decision, and August 18, 2016, when the Veteran's representative filed a claim for an increased rating for PTSD, the AOJ received no correspondence or evidence from the Veteran or his representative. Second, the AOJ sent the August 7, 2015 letter notifying the Veteran of the August 2015 rating decision to the Massachusetts address that was then of record. (There are letters sent to the Veteran soon thereafter that misspelled the name of his street, but the one at issue includes the correct spelling.) In fact, when the Veteran's representative filed the claim for an increased rating for PTSD on August 18, 2016, he included the same address in his submission. There is a presumption of regularity that government officials perform their duties correctly, fairly, in good faith and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005). This presumption extends to officials at the AOJ who are responsible for notifying claimants of actions the AOJ takes. See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official AOJ duties). In a case in which a claimant asserts non-receipt of notice, he or she may rebut this presumption by submitting clear evidence establishing that VA's regular mailing practices were not followed. Jones v. West, 12 Vet. App. 98, 102 (1998). In this case, the Veteran has submitted no evidence to show that he did not receive the notification letter, and his assertion of nonreceipt, alone, is insufficient to rebut the presumption of regularity. Id. at 102. The Board must therefore presume that that the AOJ properly discharged its official duties and mailed the notification letter to the Veteran in the normal course of business. Based on the above discussion, the criteria for entitlement to a July 21, 2016, but no earlier, for the assignment of a 70 percent rating for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS FOR REMAND Entitlement to service connection for a neck disability Entitlement to service connection for a right knee disability Whether new and material evidence has been received to reopen a claim of entitlement to service connection for low back pain The Veteran claims entitlement to service connection for neck and right knee disabilities and low back pain on a direct basis as initially manifesting in service or developing secondary to an in-service Humvee accident (tried to drive up sandhill but flipped over three or four times, hitting head against dashboard). He testified that, immediately after the accident, he noticed pain in his lower back, the middle of his neck and right knee. He reported it to a medic, who sent him for treatment, but, because soldiers could not take time off, no course of action was recommended. He further testified that, since then, he has had neck, low back and right knee pain and a constant crick in his neck. Service treatment and personnel records confirm in-service complaints of low back pain but do not corroborate that the accident occurred. Recently, however, the Veteran submitted evidence that speaks to this matter. This evidence - written statements from JL, a friend of 20 plus years, DC, who was stationed with the Veteran in Germany from 2001 to 2003 and has remained his friend for 20 years, and BJ, who too was stationed with the Veteran in Germany and deployed with him in 2002 - indicate that the Veteran had been involved in a Humvee accident and, following deployment, began complaining of back and knee pain. The AOJ has not yet considered this evidence in support of these claims. In addition, post-service treatment records objectively confirm that the Veteran has neck, knee and chronic low back pain, but no medical professional has attributed such pain to a particular disability. Pain alone, without an identified underlying diagnosis, may constitute a disability provided it results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The word "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability". Id. The United States Court of Appeals for Veterans Claims recently elaborated that, to meet the current disability requirement under Saunders, "there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person." Wait v. Wilkie, No. 18-4349, 2020 U.S. App. Vet Claims LEXIS 1609 (Aug. 26, 2020). To date, VA has not secured a medical opinion addressing whether the Veteran's current neck, low back and knee pain results in functional impairment, and if so, whether it is related to his active service, including the documented in-service back pain and/or reported Humvee accident. Entitlement to a rating greater than 70 percent for PTSD During a June 2015 VA PTSD examination, the Veteran reported that he was in counseling at the Vet Center in Brockton. Records of this counseling are not in the file. The matters are REMANDED for the following action: 1. Secure and associate with the Veteran's file records of his counseling at the Vet Center in Brockton, Massachusetts. 2. Afford the Veteran a VA neck, back and right knee examination. The examiner should review all pertinent evidence, including: (a) service treatment records, which refer to low back pain; (b) post-service treatment records, which refer to low back, neck and knee pain, the former as early as 2007; (c) the Veteran's written statements and hearing testimony indicating that he has experienced such pain since service; and (d) lay statements from LH, DC and BJ discussing an in-service Humvee accident and the Veteran's back and knee pain. The examiner should record in detail the circumstances of the Veteran's reported in-service Humvee accident and his history of neck, back and right knee pain, including when the pain initially manifested. Based on a physical evaluation and any testing deemed necessary, the examiner should identify each neck, back and right knee disability shown to exist. If no such diagnosis is appropriate, the examiner should indicate whether the Veteran's neck pain, low back pain and right knee pain, all objectively confirmed during the appeal, have resulted in functional impairment. Accepting as competent any reports of lay-observable neck, back and right knee symptoms, the examiner should opine whether each diagnosed neck, low back and/or right knee disability (to include functionally impairing pain) at least as likely as not (50 percent probability or greater) initially manifested during service. If not, the examiner should opine whether each neck, low back and/or right knee disability (to include functionally impairing pain) is at least as likely as not (50 percent probability or greater) otherwise related to the Veteran's service, including the documented low back pain and/or reported Humvee accident. The examiner should provide the rationale for each opinion. 3. Readjudicate these claims considering all recently submitted evidence, including lay statements from LH, DC and BJ. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L.N. 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.