Citation Nr: 0001133 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-20 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitled to an evaluation in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD) prior to December 1, 1991, and to an evaluation in excess of 50 percent from December 1, 1991, on appeal from the initial grant of service connection. 2. Entitlement to an effective date earlier than December 30, 1987, for the grant of entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Military Order of the Purple Heart WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis INTRODUCTION The veteran served on active duty from June 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. The RO has not certified the issue of entitlement to an earlier effective date as on appeal to the Board. Following the initial grant of service connection for PTSD in an April 1988 rating decision, the veteran expressed his disagreement with the effective date in a statement received in May 1988. The RO denied entitlement to an earlier effective date in a June 1988 rating decision, and a notice of disagreement was received from the veteran's representative in July 1988. A supplemental statement of the case issued in September 1988 included the effective date issue, and the veteran filed a substantive appeal dated in October 1988. A hearing was held at the RO, after which the hearing officer granted an increase in the appellant's PTSD and denied an earlier effective date. The veteran was notified that this was a substantial grant of the benefits sought on appeal. However, since the veteran had perfected an appeal of the issue of entitlement to an earlier effective date, and since his claim was denied, this decision was not by any construction a substantial grant of the benefits sought on appeal. Accordingly, this issue remains pending in appellate status, and it will be addressed by the Board herein. The issue of entitlement to a higher evaluation for PTSD, on appeal from the initial grant of service connection, will be the subject of the remand herein. FINDINGS OF FACT 1. The appellant had inpatient hospitalization for PTSD from October 15, 1987, to December 17, 1987. 2. The appellant filed his first formal claim for compensation on December 30, 1987. CONCLUSION OF LAW There is no legal basis for the award of entitlement to service connection for post-traumatic stress disorder prior to December 30, 1987. 38 U.S.C.A. §§ 5101(a), 5110(a), (b)(1) (West 1991); 38 C.F.R. §§ 3.157, 3.400(b)(2) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The appellant filed his original claim for compensation or pension on a VA Form 21-526. It was received in the RO on December 30, 1987. He stated that the claim was based on a nervous condition (PTSD), and that he had been hospitalized in October and November at the VA medical center (MC) in Bay Pines, Florida. The RO undertook development of the appellant's claim, to include requesting records from Bay Pines VAMC of the appellant's hospitalization. In February 1988, a hospital summary showing hospitalization from October 15, 1987, to December 17, 1987, was received. The Axis I diagnosis was post-traumatic stress disorder, chronic. In an April 1988 rating decision, the RO granted entitlement to service connection for PTSD and assigned an effective date of December 30, 1987. The veteran was notified of that decision. In May 1988, he submitted a statement in which he asked that the effective date of service connection be moved back to October 15, 1987, the date on which he was admitted for treatment of PTSD. In a June 1988 rating decision, entitlement to an earlier effective date was denied. A memorandum was received from the appellant's representative in July 1988, expressing disagreement with the effective date. In September 1988, the veteran was provided a (supplemental) statement of the case, and he filed a substantive appeal of this issue in a VA Form 1-9 dated October 4, 1988. He argued that being in the hospital constituted an informal claim and that entitlement to service connection should be granted from the date of his admission. II. Legal Analysis Following the veteran's active service, the first formal claim he filed for VA benefits was received on December 30, 1987. That is the date as of which service connection was established. The provisions of the law governing effective date of awards of benefits are clear. A claim must be filed in order for VA benefits to be paid. 38 U.S.C.A. § 5101(a) (West 1991). The effective date of an award is generally the date of receipt of a claim (or informal claim where appropriate), or the date entitlement arose, whichever is later (emphasis added). 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (1999). More specifically, the effective date of an award of disability compensation for direct service connection is the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from service; otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (1999) (emphasis supplied). The veteran in this case did not file a claim of entitlement to service connection within the first post-service year, so that provision does not avail him of an earlier effective date. He has contended that the report of hospitalization should be considered an informal claim, and that entitlement to service connection should be granted as of the beginning of his hospitalization. In certain circumstances, a report of hospitalization may be considered to be an informal claim for increase or to reopen. See 38 C.F.R. § 3.157 (1999). Under that regulation, the general rule regarding effective dates is reiterated, that is, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.157(a) (1999). However, once a formal claim for compensation has been allowed, or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of hospitalization by VA will be accepted as an informal claim for increase or to reopen. 38 C.F.R. § 3.157(b)(1) (1999) (emphasis added). The regulation provides further that it applies only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of hospital admission. Id. This regulation does not avail the veteran of an earlier effective date. The formal claim he filed on December 30, 1987, was the first claim he had made for VA benefits. He had not previously had a formal claim for compensation allowed, nor had he had a formal claim for compensation disallowed for the reason that the service-connected disability was not compensable in degree. "A claim 'means a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.' [Citation omitted.] 'Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs . . . may be considered an informal claim. Such informal claim must identify the benefit sought.' 38 C.F.R. § 3.155(a)." Brannon v. West, 12 Vet. App. 32, 34-35 (1998). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual. See Jones v. West, 136 F. 3d 1296, 1299 (Fed. Cir. 1998). The veteran's formal claim was filed December 30, 1987, and not before. That date was not within the first year following separation from service. Notwithstanding that the VA hospital summary was evidence relied upon by the RO to grant entitlement to service connection, it does not, under the law, provide a basis for awarding entitlement to service connection prior to the date the veteran's first formal claim was received. In this case, the facts are not in dispute, and application of the law to the facts is dispositive. Where there is no entitlement under the law to the benefit sought, the appeal must be terminated. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to an effective date earlier than December 30, 1987, for the grant of service-connection for post-traumatic stress disorder is denied. REMAND The veteran's claim of entitlement to a higher evaluation for PTSD must be remanded for evidentiary development and due process. First, the veteran's claim is on appeal from the initial grant of entitlement to service connection. Initially, an evaluation of 10 percent was assigned. The veteran perfected an appeal from that rating, and a hearing officer granted a 30 percent evaluation, effective the date of service connection. The veteran was advised that this was a "substantial" grant of the benefit sought on appeal and that his appeal was being withdrawn. On a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). This issue is on appeal from the original grant of service connection. The United States Court of Appeals for Veterans Claims (formerly the U.S. Court of Veterans Appeals) (Court) has held that there is a distinction between a claim based on disagreement with the original rating awarded and a claim for an increased rating. Fenderson v. West, 12 Vet. App. 119 (1999). The distinction may be important in determining the evidence that can be used to decide whether the original rating on appeal was erroneous and in determining whether the veteran has been provided an appropriate SOC. Id., at 126. With an initial rating, the RO can assign separate disability ratings for separate periods of time based on the facts found. Id. With an increased rating claim, "the present level of disability is of primary importance." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The distinction between disagreement with the original rating awarded and a claim for an increased rating is important in terms of VA adjudicative actions. Fenderson, 12 Vet. App. at 126. The Court in Fenderson specifically found that a supplemental statement of the case that incorrectly treated a claim as one for increased evaluation for a service-connected condition rather than as a disagreement with the original rating awarded could not serve as an SOC as to the appeal from an initial rating assigned to the service-connected condition. Id. On remand, the RO must comply with Fenderson in its phrasing and consideration of the issue on appeal. It appears that there may be additional evidence relevant to the claim for higher evaluation of the PTSD, and additional development should be undertaken. In a July 1998 statement, the veteran's representative indicated that the veteran has been in receipt of Social Security disability benefits based on PTSD since 1993. The medical and adjudicative records relating to such disability determination are not of record. They must be requested. The veteran's outpatient and inpatient VA treatment records from June 1998 to the present should be associated with the claims file. Accordingly, the appeal is remanded for the following: 1. The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 2. Request the veteran's VA medical records, to include all records maintained electronically, e.g., by computer, and on microfiche or paper, for treatment from June 1998 to the present for PTSD. Associate all requests and records received with the claims file. 3. Thereafter, adjudicate the appellant's claim of entitlement to a higher evaluation than 30 percent prior to December 1, 1991, and to an evaluation in excess of 50 percent from December 1, 1991, on appeal from the initial grant of entitlement to service connection for PTSD. Take into account that the rating criteria for evaluating mental disorders changed during the pendency of this appeal, and that, where regulations change during the course of an appeal, the RO must determine, if possible, which set of regulations, the old or the new, is more favorable to the claimant and apply the one more favorable to the case. Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, the revised regulations may not be applied prior to their effective date, unless retroactivity is specifically provided for by the Secretary. See Rhodan v. West, 12 Vet. App. 55, 57 (1998); citing Allin v. Brown, 6 Vet. App. 207, 211 (1994). If the determination remains adverse to the appellant, provide him and his representative a supplemental statement of the case that correctly identifies the issue on appeal, and allow an appropriate period of time for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is further informed. The purpose of this REMAND is to obtain additional medical information and to accord due process. No inference should be drawn regarding the final disposition of the claim as a result of this action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals