Citation Nr: 22040151 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 20-29 416 DATE: July 13, 2022 ORDER Entitlement to an earlier effective date prior to February 22, 2017, for a 70 percent rating for PTSD is denied. Entitlement to an earlier effective date of March 18, 2016, but no earlier, for a 10 percent rating for a spontaneous collapsed lung with COPD is granted. REFERRED The issues of clear and unmistakable error in February 1969, June 1992, February 1997, and May 1997 rating decisions were raised in July 2017 correspondence and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. There was no communication from the Veteran that could reasonably be construed as an increased rating claim for his PTSD prior to February 22, 2017, since the last final rating decision, nor was there evidence of increase in disability factually ascertainable within a year of the claim. 2. There was no communication from the Veteran that could reasonably be construed as an increased rating claim for his spontaneous collapsed lung with COPD prior to February 22, 2017, since the last final rating decision. 3. Medical evidence shows that an increase in severity in the Veteran's spontaneous collapsed lung with COPD disability was factually ascertainable as of March 18, 2016, within a year of his February 22, 2017, claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date prior to February 22, 2017, for a 70 percent rating for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an earlier effective date from March 18, 2016, but no earlier, for a 10 percent rating for spontaneous collapsed lung with COPD have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1966 to September 1968. These matters are on appeal to the Board of Veterans' Appeals (Board) from a June 2017 rating decision. The Board notes that the Veteran has alleged clear and unmistakable error (CUE) in February 1969, June 1992, February 1997, and May 1997 rating decisions following the June 2017 rating decision on appeal. Revision of those decisions based on CUE was considered in the June 2020 Statement of the Case (SOC). A CUE motion is a separate and distinct cause of action from an earlier effective date claim, which requires appropriate filing on requisite VA forms and an initial Agency of Original Jurisdiction (AOJ) adjudication. Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (explaining that 38 U.S.C. § 5109A requires that a request for revision of a final RO decision on the basis of CUE be submitted to the RO for initial adjudication). An SOC cannot serve to announce decisions on issues in the first instance. See 38 C.F.R. § 19.31. Because no rating decision has been issued adjudicating the CUE motions in the first instance, the issues are referred to the RO for appropriate action. See 38 C.F.R. § 20.904 (b) (The Board shall refer to the agency of original jurisdiction for appropriate consideration and handling in the first instance all claims reasonably raised by the record that have not been initially adjudicated by the agency of original jurisdiction). 1. Entitlement to an earlier effective date prior to February 22, 2017, for a 70 percent rating for PTSD 2. Entitlement to an earlier effective date prior to February 22, 2017, for a 10 percent rating for spontaneous collapsed lung with COPD The Veteran timely appealed the assigned effective dates for the increased disability ratings for his service-connected PTSD and spontaneous collapsed lung with COPD (lung disability). The applicable law and regulations concerning effective dates state in relevant part that, except as otherwise provided, 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 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to this rule exists under 38 C.F.R. § 3.400 (o)(2). This provision allows VA to assign an effective date for increased rating up to one year prior to the date of claim where medical evidence indicates an increase in disability during that time period. 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Effective March 24, 2015, VA included a requirement 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, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Prior to the March 24, 2015, amendments, VA accepted both formal and informal claims. An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155 (a) (2014). There is no set form that an informal written claim must take, but it must have been in writing. 38 C.F.R. § 3.1 (p). All that is required is that the written communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). Here, the Veteran filed an increased rating claim for both disabilities that was received by VA on February 22, 2017. There were no pending increased rating claims at the time the claim was filed. For his PTSD, there is no indication in the record that his increase in disability took place within a year of his increased rating claim. There are no medical records during that period pertaining to his PTSD. Thus, the earliest possible effective date is the date of claim, February 22, 2017. For his lung disability, he submitted outpatient treatment records showing pulmonary function testing from Cape Regional Medical Center that was conducted on March 18, 2016. The record shows FEV-1/FVC of 61 percent, entitling him to an increased rating under Diagnostic Code 6604, 38 C.F.R. § 4.97. While it was ultimately concluded by the RO, considering the entirety of the evidence, that the Veteran was entitled to a different rating than that reflected by the March 2016 findings, that evidence nonetheless shows that the Veteran underwent an increase in severity in his service-connected lung disability within a year of filing for increase. There are no medical records earlier than that date reflecting an increase in disability. Thus, the Board finds that the Veteran met the criteria for an increased rating on March 18, 2016, but no earlier. L.M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.