Citation Nr: A25098677 Decision Date: 11/13/25 Archive Date: 11/13/25 DOCKET NO. 241125-498559 DATE: November 13, 2025 ISSUE Entitlement to an effective date earlier than June 18, 2020, for the grant of a 70 percent rating for posttraumatic stress disorder; mild neurocognitive disorder co-occurrent and due to traumatic brain injury (PTSD). ORDER Entitlement to an effective date earlier than June 18, 2020, for the grant of a 70 percent rating for PTSD is DENIED. FINDING OF FACT The Veteran's service-connected PTSD was not shown to have increased in severity prior to June 18, 2020. CONCLUSION OF LAW The criteria for an effective date prior to June 18, 2020, for the award of the 70 percent disability rating for PTSD are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. FACTUAL AND PROCEDURAL HISTORY The Veteran served on active duty in the Armed Forces of the United States from October 2004 to February 2006 and from August 2007 to June 2008. On August 11, 2023, the Veteran filed a request for a higher-level review with the Department of Veterans Affairs (VA). On December 9, 2023, the VA Regional Office (RO) issued a rating decision that denied the issue on appeal. On November 25, 2024, the Veteran noted a timely appeal of the rating decision to the Board. The appeal was prosecuted pursuant to the modernized review system. REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria - Earlier Effective Date Claim, Increased Rating For an increased rating claim, the effective date shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the claim is filed within one year from such date. 38 U.S.C. § 5110(b)(3). Otherwise, the effective date shall be the date that the claim is received. 38 C.F.R. § 3.400(o)(2). Under 38 U.S.C.§ 5110(a), the effective date of an increase in a veteran's disability compensation 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(b)(2) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." Thus, "the plain language of [section] 5110(b)(2)... only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." Three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The Board must, however, also consider the possibility that a prior claim was filed and not acted upon, or that a decision on a prior claim did not become final. Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(p). The date of receipt is the date on which a claim, information, or evidence was received by VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155; see also Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). This rule also applies to notices of disagreement filed prior to March 24, 2015, as no special wording was required. 38 U.S.C. § 7105(b)(2); 38 C.F.R. § 20.201-204. As of March 24, 2015, VA regulations require that all claims be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals/notices of disagreement filed on or after March 24, 2015. Analysis In a May 15, 2015, rating decision, service connection was granted for PTSD with an evaluation of 50 percent effective November 24, 2014. On June 18, 2020, the Veteran was afforded a VA-contracted examination for his PTSD. The RO issued a rating decision that granted an increased rating of 70 percent for PTSD, effective June 18, 2020, based on the VA-contracted examination. After considering all the evidence, the Board finds the claim for entitlement to an earlier effective date is not warranted. The record does not contain any intent to file or formal or informal claim, earlier than June 18, 2020. Therefore, the Board finds that there was no pending claim prior to June 18, 2020. Based on a review of the evidence of record, as discussed below, the Board finds that the service-connected PTSD was not shown to have increased in severity prior to June 18, 2020. The Veteran's PTSD is rated under Diagnostic Codes 8045-9411. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned; the additional code is shown as a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 8045 refers to the Veteran's mild neurocognitive disorder co-occurrent and due to traumatic brain injury (TBI), and Diagnostic Code 9411 refers to PTSD. Residuals of TBI are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8045. Diagnostic Code 8045 states that there are three main areas of dysfunction that may result from a TBI and that may have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Cognitive impairment should be evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." 38 C.F.R. § 4.124a, Diagnostic Code 8045. Subjective symptoms may be the only residual of TBI, or they may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, should be separately evaluated, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Emotional/behavioral dysfunction is evaluated under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Physical (including neurological) dysfunction is evaluated based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation and combine the evaluations for each separately rated condition under § 4.25. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a fifth level, the highest level of impairment, labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100 percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental, neurologic, or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Evaluations assigned are based upon the highest level of severity for any facet of cognitive impairment and other residuals of TBI not otherwise classified as determined on examination. Only one evaluation is assigned for all the applicable facets. A higher evaluation is not warranted unless a higher level of severity for a facet is established on examination. Physical and/or emotional/behavioral disabilities found on examination that are determined to be residuals of traumatic brain injury are evaluated separately. Service connection for TBI was granted in a January 2021 rating decision, and was added to the rating for the PTSD, based on the results of an October 2020 VA examination. The evidence of record dated within a year of June 18, 2020, does not contain reports of symptoms showing impairment required for a higher rating for the TBI, nor is such an argument advanced by the Veteran. PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned for symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships which result in occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned for symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships, which cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. A review of the record does not show evidence dated within a year of June 18, 2020, that indicated the overall impairment of a 70 percent rating for the PTSD. Namely, the evidence of record during this timeframe includes VA treatment records that showed symptoms to include sadness because of his mother's death and symptoms associated to the grief process to include a panic attack and concentration problems. The Veteran also reported being overstimulated from others, had a desire to be alone, and had obsessive thoughts. Symptoms associated with a 70 percent rating for PTSD such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships, which cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood was not shown. The VA treatment records do not show evidence that indicated the applicably of a 70 percent rating. The Board finds that the date that the increase was shown to have occurred (date entitlement arose) is the proper effective date, June 18, 2020 (38 C.F.R. § 3.400 (o)(1)). Although the Board is sympathetic to the Veteran's position and his contentions for an earlier effective date for the award of a 70 percent rating, the legal authority governing effective dates is clear and specific, and the Board is bound by such authority. There is no legal basis for assigning an earlier effective date. The earliest effective date allowed under the law and regulations is the currently assigned effective date of June 18, 2020. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400. For the foregoing reasons, the evidence weighs persuasively against entitlement to an earlier effective date than June 18, 2020, for the award of a 70 percent rating for PTSD. As there is not an approximate balance of positive and negative evidence, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (Continued on the next page) ? Entitlement to an earlier effective date than June 18, 2020, for the award of a 70 percent rating for PTSD is not warranted, and the claim is denied. STEVEN V. ADLER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.