Citation Nr: 22019995 Decision Date: 04/04/22 Archive Date: 04/04/22 DOCKET NO. 18-22 114 DATE: April 4, 2022 ORDER Entitlement to an effective date prior to September 26, 2011, for the award of service connection for posttraumatic stress disorder (PTSD) with depressive disorder and alcohol abuse disorder, is denied. REMANDED Whether there is clear and unmistakable error (CUE) in an April 1994 rating decision that denied a claim for entitlement to service connection for PTSD. Entitlement to an initial rating in excess of 50 percent for PTSD with depressive disorder and alcohol abuse disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. An April 1994 rating decision denied claims for service connection for PTSD and nervousness/stress. He was notified of the denial in May 1994. He did not file a notice of disagreement with regard to denial of service connection for PTSD or nervousness/stress. 2. A January 1998 rating decision denied claims for service connection for PTSD and major depressive disorder. He was notified of the denial in February 1998. He did not file a notice of disagreement with regard to denial of service connection for PTSD or major depressive disorder. 3. The Veteran submitted a claim for service connection for PTSD with depressive disorder and alcohol abuse disorder on September 26, 2011. The claim was granted in a May 2015 rating decision. 4. Prior to the September 26, 2011 claim, there were no pending requests for entitlement to service connection for any acquired psychiatric disorders, to include PTSD, that remained unadjudicated. CONCLUSIONS OF LAW 1. The April 1994 rating decision that denied entitlement to service connection for PTSD and nervousness/stress (also claimed as impaired speech and depression) is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302(a), 20.1103. 2. The January 1998 rating decision that denied entitlement to service connection for PTSD and major depressive disorder is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302(a), 20.1103. 3. The criteria for an effective date prior to September 26, 2011, for the grant of service connection for PTSD with depressive disorder and alcohol abuse disorder have not been met. 38 U.S.C. §§ 1155, 5101, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1, 3.105, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1987 to June 1991 and from July 1991 to May 1993. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. Earlier Effective Date Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a). For claims for disability compensation filed within one year of the Veteran's separation from service, the effective date of an award of disability compensation will be the day following the date of the veteran's discharge. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400. The effective date of an award based on a claim reopened after final adjudication 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; 38 C.F.R. § 3.400(q)(2), (r). During the pendency of the appeal the definition of what constitutes a valid claim changed. Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. at 57, 686. Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Id. As the Veteran's claim for an earlier effective date was pending before March 24, 2015, the Board will apply the laws and regulations as they existed prior to the amendment in determining whether a submission constituted a claim for benefits. Under the law prior to the amendment, a claim was defined as 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). An informal claim was any communication or action indicating an intent to apply for one or more benefits that identifies the benefit sought. 38 C.F.R. § 3.155. Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or her representative may be considered an informal claim. Such informal claim must identify the benefit sought. 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 veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Entitlement to an effective date prior to September 26, 2011, for the award of service connection for PTSD with depressive disorder and alcohol abuse disorder is denied. The Veteran is seeking an effective date earlier than September 26, 2011, for the grant of service connection for his PTSD with depressive disorder and alcohol use disorder. By way of background, the Veteran submitted a claim of entitlement to service connection for PTSD, an alcohol problem, flashbacks, and depression in June 1993. See June 1993 VA Form 21-526 Veterans Application for Compensation or Pension. The following month, the Veteran requested service connection for a speech impairment, which had been aggravated by the amount of stress he was put under during service. See July 1993 VA Form 21-4138 Statement in Support of Claim. In an April 1994 rating decision, the RO denied service connection for PTSD and nervousness/stress (also claimed as impaired speech and depression). The rating decision specifically highlighted the Veteran's enlistment reports of medical examination and history, separation report of medical examination, and service treatment records (STRs) dated in March 1992 and December 1992, which pertained to his claimed acquired psychiatric disorders. In addition, the RO noted that the Veteran's August 1993 VA examination report was negative for any diagnoses of or treatment for neurosis or psychosis and only showed a possibility of a character disorder. To this end, the RO denied the Veteran's claim for entitlement to service connection for PTSD because there was no evidence that he was exposed to a significant stressor or that he had a diagnosis of PTSD. The RO also denied his claim for entitlement to service connection for nervousness/stress because the evidence of record showed that his symptoms existed prior to service and there was no evidence to indicate that the condition worsened during service. In addition, the Board notes that the April 1994 rating decision also denied the Veteran's claims of entitlement to service connection for alcohol abuse disorder and a character disorder as matters of law. Specifically, the RO explained that alcoholism was defined as willful misconduct and that character and personality disorders were not designated as disabilities by VA. See April 1994 Rating Decision Narrative. The Veteran was notified of the April 1994 rating decision in a May 1994 letter. See May 1994 Notification Letter (e.g., VA Form 20-8993, VA Form 21-0290, PCGL). He did not submit a notice of disagreement with regard to the above mentioned claims, and no new or material evidence was submitted within one year of notice of that decision. Accordingly, the April 1994 rating decision became final. The Veteran subsequently reported psychiatric symptoms, to include nightmares, flashbacks, mood swings, depressed mood, social withdrawal, and social and occupational impairment, in a December 1995 letter. See December 1995 Correspondence; see also September 1996 Correspondence. The RO considered the Veteran's claim in a January 1998 rating decision, which found that new and material evidence adequate to reopen the claim for service connection for PTSD had not been submitted and denied entitlement to service connection for major depressive disorder. See January 1998 Rating Decision Narrative. The Veteran was notified of the January 1998 rating decision in a February 1998 letter. See February 1998 Notification Letter (e.g., VA Form 20-8993, VA Form 21-0290, PCGL). However, he did not submit a notice of disagreement to the January 1998 rating decision, and no new or material evidence was submitted within one year of notice of that decision. Accordingly, the January 1998 rating decision also became final. In this case, the Veteran filed his claim for service connection for PTSD on September 26, 2011. See September 2011 VA Form 21-0820 Report of General Information. In a May 2015 rating decision, the RO granted service connection for PTSD with depressive disorder and alcohol abuse disorder and assigned a 30 percent rating effective September 26, 2011, the date of the claim to reopen. See May 2015 Rating Decision Narrative. Prior to September 2011, there were no unadjudicated claims for acquired psychiatric disorders, nor were there any documents that were received that could be construed as expressing an intent to file a claim for benefits or that identify any desired benefits for an acquired psychiatric disorders. 38 C.F.R. § 3.155(a). As there were no claims for benefits pending adjudication prior to the September 26, 2011 claim, there are no grounds for the assignment of an effective date earlier than September 26, 2011, the date of receipt of the Veteran's claim for benefits. As such, the Board finds that an effective date earlier than September 26, 2011, for the grant of service connection is not warranted in this case. In summary, September 26, 2011 is the earliest effective date available for the Veteran's grant of service connection for PTSD with depressive disorder and alcohol abuse disorder. As such, the Veteran's claim for entitlement to an earlier effective date prior to September 26, 2011 for the grant of entitlement to service connection for PTSD with depressive disorder and alcohol abuse disorder is denied. REASONS FOR REMAND Whether there is CUE in an April 1994 rating decision that denied a claim for entitlement to service connection for PTSD is remanded. During the hearing, the Veteran testified for the first time that he believed there was CUE in an April 1994 rating decision. This issue has not been addressed by the RO in the first instance. It is therefore remanded to the RO for adjudication. Entitlement to an initial rating in excess of 50 percent for PTSD with depressive disorder and alcohol abuse disorder is remanded. The Veteran was last afforded a VA examination for PTSD in January 2017. The examiner noted that the Veteran had been diagnosed with PTSD with moderate alcohol use, which was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted the following symptoms: depression, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, circumstantial, circumlocutory, or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting. During the examination, the Veteran reported that he was employed by VA, and the examiner indicated that he was mildly anxious and talkative during the interview. See January 2017 C&P examination. During his October 2021 Board hearing, the Veteran endorsed additional PTSD symptoms, to include hypervigilance, exaggerated startle response, anger, tearfulness, and flashbacks. He also testified that he had been suspended from his job at VA for screaming at employees and creating a hostile work environment and reported that he subsequently chose to resign from his position in or around December 2020 or January 2021. The Veteran noted that he attempted to rescind his resignation after taking a weekend to think over the decision but indicated that it was accepted due to his behavioral issues. He further testified that he had not been able to find work since that time. See October 2021 Hearing Transcript, pages 5, 11-15. In this case, the Veteran's reported symptoms indicate that the severity of his service-connected PTSD with depressive disorder and alcohol abuse disorder has worsened since his last VA examination in January 2017 and may cause occupational and social impairment beyond reduced reliability and productivity. Evidence of a change in the condition or allegation of worsening of the condition renders an examination inadequate for rating purposes. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); see also Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Thus, the Board finds that a remand is necessary to obtain a VA examination to determine the current severity of the Veteran's service-connected PTSD with depressive disorder and alcohol abuse disorder. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In addition, during the October 2021 Board hearing, the Veteran testified that he received treatment at VA from February 2021 to May 2021. See October 2021 Hearing Transcript, page 13. To this end, the Board recognizes that the Veteran submitted a copy of his VA health summary (continuity of care document), but finds that it is unclear whether the records submitted by the Veteran are complete. To this end, the Board notes that, with the exception of the abovementioned records, the most recent VA treatment records currently associated with the Veteran's claims file are dated in February 2018 and that no unavailable records response has been received. As such, the Board finds that a remand is also required to obtain these records. Entitlement to a TDIU is remanded. During his October 2021 Board hearing, the Veteran testified that he was suspended and subsequently resigned from his job at VA due, at least in part, to his service-connected PTSD with depressive disorder and alcohol abuse disorder. To this end, he reported that he attempted to rescind his resignation but was not permitted to return because of his prior behaviors, to include screaming at employees and creation of a hostile workplace environment. See October 2021 Hearing Transcript, pages 11-13, 15; see also November 2021 Email Correspondence. The Board finds that the issue of entitlement to a TDIU has been raised by the record and is part and parcel of the Veteran's claim for an increased disability rating. See Rice v Shinseki, 22 Vet. App. 447 (2009). However, as the issue on appeal is being remanded, consideration of the Veteran's claim of entitlement to a TDIU, at this juncture, would be premature as the issue is inextricably intertwined with the remanded claim on appeal. Accordingly, the Board will defer TDIU adjudication. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. The RO should adjudicate the claim as to whether there is CUE in an April 1994 rating decision that denied service connection for PTSD and nervousness/stress (also claimed as impaired speech and depression). 2. The RO should develop the claim for TDIU. 3. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file, to include VA treatment records from the Veteran's VA treatment facilities dated from February 2021 to the present. 4. After the development in #3 has been completed, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected PTSD with depressive disorder and alcohol abuse disorder. His claims file must be made available to the examiner for review in connection with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected PTSD with depressive disorder and alcohol abuse disorder, as well as the impact that such has on his social and occupational functioning. 5. Thereafter, if the benefits sought are not granted in full, readjudicate the claims on appeal, to include the claim for a TDIU. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.