Citation Nr: 21032557 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-21 011 DATE: May 27, 2021 ORDER Entitlement to an effective date of September 2, 2008, for the grant of service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an initial rating in excess of 30 percent for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. An informal claim for service connection for PTSD was received on June 19, 2008. 2. An acquired psychiatric disorder, adjustment disorder, was first diagnosed on September 2, 2008. CONCLUSION OF LAW The criteria for assignment of an effective date of September 2, 2008, for the award of service connection for the Veteran's PTSD have been met. 38 U.S.C. § 1155, 5110; 38 C.F.R. § § 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1980 and February 1983. In June 2020, the Veteran testified at a videoconference before the undersigned Veterans Law Judge. A transcript of that hearing is of record The Veteran filed an application for TDIU in March 2020, specifically citing his service-connected PTSD and back disability as those that impacted his employability. That claim is before the Board as part of the increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran has representation specifically limited to the issues regarding PTSD. The Board will address his claim for increased ratings for his back and lower extremity radiculopathies in a separate decision. The TDIU claim is intertwined with both his PTSD and back disabilities the Board will address entitlement to TDIU in both decisions. Entitlement to an effective date earlier than January 12, 2012 for the grant of service connection for PTSD The Veteran seeks an earlier effective date than January 12, 2012 for the grant of service connection. The Board finds that an earlier effective date of September 2, 2008 is warranted. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. In June 2008 the Veteran submitted an informal claim for service connection for PTSD. The statement in support of claim included "filing this request for benefits," details of an assault in service and a handwritten note referencing "Post traumatic stress disorder for sexual assault." In a September 2008 VA psychiatric evaluation, an adjustment disorder with depressed mood was diagnosed. The provider noted that the Veteran was sub-threshold for PTSD. In a January 2012 VA treatment note, PTSD was diagnosed. In the February 2016 rating decision on appeal, the AOJ granted service connection for PTSD, effective January 12, 2012. The rating decision identified that date as the first evidence of a definitive diagnosis of PTSD. Based on a review of the evidence, the Board finds that an effective date of September 2, 2008 is warranted for the grant of service connection for PTSD. The effective date of an evaluation and grant of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The regulations regarding claims were amended effective March 24, 2015. The amendment requires claims to be filed on standard forms, eliminates constructive receipt of claims, and eliminates informal claims. See 79 Fed. Reg. 57660, Standard Claims and Appeals Forms (Sept. 25, 2014). For claims dated prior to March 24, 2015, a claim was a written communication requesting a determination of, or evidencing a belief in, entitlement to specific benefits. 38 C.F.R. § 3.1(p). The scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Veteran's informal claim for PTSD received in June 2008 also encompassed a claim for additional psychiatric disabilities. The record reflects that the Veteran was first diagnosed with an adjustment disorder in September 2008, prior to his diagnosis of PTSD. Accordingly, appropriate effective date is September 2, 2008, the date of the Veteran's initial diagnosis of an acquired psychiatric disorder, an adjustment disorder, as it is later than the date of claim. REASONS FOR REMAND Entitlement to an initial rating in excess of 30 percent for PTSD is remanded. At the June 2020 hearing, the Veteran and his wife testified that the Veteran's PTSD manifested in symptoms not considered by the May 2020 VA examination, specifically hypervigilance and impulsive behavior. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD. Additionally, at the June 2020 videoconference hearing, the Veteran identified relevant outstanding private psychiatric treatment records. A remand is required to allow VA to obtain authorization and request these records. Entitlement to TDIU is remanded. Because a decision on the remanded issues could significantly impact a decision on entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim of entitlement to TDIU is required. In his March 2020 VA Form 21-8940, Application for TDIU, the Veteran indicated he was currently employed. However, at the June 2020 videoconference hearing the Veteran testified that he was no longer employed. On remand, the Veteran should be asked to submit an updated VA Form 21-8940, Application for TDIU. Correspondence in the record (including April 2021 and May 2021 letters) shows the Veteran has applied for Vocational Rehabilitation benefits during the course of the appeal. On remand, Vocational Rehabilitation records should be obtained as they may contain evidence relevant to the increased rating claim on appeal. Finally, on remand, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for any psychiatric complaints since September 2008 not already associated with the record. Specifically, ask the Veteran to complete an updated VA Form 21-4142 for St. Peters Health, unless it is clear after the first request that a second request would be futile. After securing the necessary release, take all appropriate action to obtain these records, and any updated VA treatment since April 2020. 2. Take all appropriate action to obtain any existing VA vocational rehabilitation records or folder. 3. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that he submit an updated completed form, with all appropriate information. Thereafter, take all appropriate action on the TDIU claim. 4. After the completion of the above, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his PTSD alone. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. [Please note that the issue of entitlement to TDIU is also addressed in a separate Board decision as also inextricably intertwined with a claim for a higher rating for a back disability. If the development regarding TDIU has been completed in connection with that decision, there is no need to undertake the development again] M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.