Citation Nr: 0002050 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-03 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an effective date, prior to March 1, 1995, for the grant of a 100 percent evaluation for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. S. Hughes, Associate Counsel INTRODUCTION The veteran served on active duty from September 1966 to September 1968 and from September 1973 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. FINDINGS OF FACT 1. The veteran's original claim of entitlement to service connection for PTSD is dated November 22, 1993. 2. In November 1994 the RO granted service connection for PTSD and assigned a schedular evaluation of 10 percent, effective from November 22, 1993. 3. In March 1995 the veteran reported that he had been in receipt of treatment in a PTSD program since March 1995. This statement is accepted as a notice of disagreement with the November 1994 rating decision. 4. In May 1995, upon consideration of VA treatment reports which showed that he had been hospitalized from January 25, 1995, to February 15, 1995, and from March 6, 1995, to March 17, 1995; the RO assigned a temporary total rating for the period from January 25 to February 28, 1995, under 38 C.F.R. § 4.29 (1999). Effective March 1, 1995, his 10 percent rating for PTSD was resumed. 5. In May 1995 the veteran's accredited representative advised that the veteran disagreed with the May 1995 rating decision wherein the RO denied an increased evaluation for PTSD. 6. Upon consideration of VA examination reports, dated in May 1995 and July 1995, the RO assigned an increased evaluation of 30 percent for PTSD, effective from March 1, 1995. 7. Thereafter, upon consideration of VA treatment reports and the veteran's testimony from a personal hearing conducted in October 1996, the RO assigned an increased evaluation of 50 percent for PTSD, effective from March 1, 1995. 8. The veteran submitted his VA From 9, Appeal to Board of Veterans' Appeals, in April 1996, thereby perfecting his appeal of the denial of an increased rating for PTSD. 9. In October 1997 the Board granted a 100 percent evaluation for PTSD, and it was noted that a total schedular rating had been medically indicated and confirmed since the last date of full-time employment in May 1993. 10. In October 1997 the RO implemented the Board decision and assigned a 100 percent rating for PTSD effective from March 1, 1995. 11. In November 1997 the veteran disagreed with the effective date of his total rating and claimed that PTSD should be evaluated as 100 percent disabling from the date of his original claim, received at the RO in 1993. CONCLUSION OF LAW The criteria for an effective date retroactive to November 22, 1993, for the award of a 100 percent rating for PTSD have been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background In November 1994 the RO granted service connection for PTSD with assignment of 10 percent evaluation, effective from November 22, 1993, the date of the veteran's claim. In March 1995 the veteran reported that he had been in receipt of treatment in a PTSD program since March 1995. The RO obtained the veteran's PTSD treatment records which showed that he had been hospitalized from January 25, 1995, to February 15, 1995, and from March 6, 1995, to March 17, 1995. Accordingly, in May 1995 the RO assigned a temporary total rating for the period from January 25 to February 28, 1995, under 38 C.F.R. § 4.29. Thereafter, his 10 percent rating for PTSD was resumed effective March 1, 1995. In May 1995 the veteran's accredited representative advised the RO of the veteran's disagreement with the May 1995 rating decision wherein the RO denied an increased evaluation for PTSD. The veteran underwent VA examinations in May and July 1995. Upon consideration of the reports of these examinations, the RO assigned an increased evaluation of 30 percent for PTSD, effective from March 1, 1995. Thereafter, in December 1995, after additional VA treatment records and the veteran's testimony from an October 1996 personal hearing were considered, the RO assigned an increased evaluation of 50 percent for PTSD, effective from March 1, 1995. In April 1996 the veteran submitted his VA From 9, Appeal to Board of Veterans' Appeals, and perfected his appeal of the denial of an increased rating for PTSD. An October 1997 decision of the Board includes the following: "The level of PTSD productive of an inability to work with symptomatology that approximates that for a total schedular rating has been medically indicated and confirmed since the last date of full-time employment in May 1993." For the foregoing reasons, the Board finds that the record supports a grant of entitlement to a 100 percent schedular rating for PTSD with application of all pertinent governing criteria." The RO implemented the above decision of the Board in October 1997. Specifically, a 100 percent rating for PTSD was assigned effective from March 1, 1995. It was noted that this was the date of receipt of the veteran's claim. In November 1997 the veteran disagreed with the effective date of his total rating and claimed that PTSD should be evaluated as 100 percent disabling from the date of his original claim, received at the RO in 1993. Criteria Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. An earlier effective date may be assigned when it is factually ascertainable that an increase in disability occurred and the claim for increase was received within 1 year from that date. 38 C.F.R. § 3.400(o)(2). However, 38 U.S.C.A. § 5110(g) authorizes an exception to that rule. Specifically, section 5110(g) provides that the effective date of an award of, or increase in, compensation "pursuant to any Act or administrative issue . . . shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue." The statute goes on to authorize retroactive payments for up to one year prior to the date of claim or the date of administrative determination of entitlement, whichever is earlier. VA's implementing regulation, 38 C.F.R. § 3.114(a), further states that a claimant cannot receive retroactive payment based on a prospectively effective liberalizing law or a liberalizing VA issue unless the evidence establishes that "the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement." The Court has noted that this requirement fulfills the intent of section 5110(g) with regard to laws or issues that are effective prospectively. See McCay v. Brown, 9 Vet. App. 183, 187-88 (1996). The diagnosis of PTSD, Diagnostic Code 9411, was added to the Rating Schedule effective April 11, 1980, the date of approval of the regulatory amendment by the Administrator of Veterans Affairs. See 45 Fed. Reg. 26,326 (1980). In a precedential opinion, VA General Counsel concluded that the addition of PTSD to the Rating Schedule in 1980 was a liberalizing VA issuance for purposes of 38 C.F.R. § 3.114(a). However, it was emphasized that an effective date prior to the date of claim could not be assigned under section 3.114(a) unless the claimant met all eligibility criteria for the liberalized benefit on April 11, 1980, the effective date of the regulatory amendment adding the diagnostic code for PTSD, and such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. VAOPGCPREC 26- 97. In this regard, the Board notes that the applicable statutory and regulatory provisions require that VA look to all communications from the appellant which may be interpreted as applications or claims -- formal and informal -- for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.400(o)(2), 3.155(a). See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Following notification of an initial review and determination by the RO, a notice of disagreement must be filed within one year from the date of mailing of notification, followed by a timely substantive appeal; otherwise, the determination becomes final and is not subject to revision absent new and material evidence. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104(a), 20.200, 20.201, 20.302. A substantive appeal must be filed within 60 days of the mailing of the statement of the case, or within the remainder of the 1-year period from the date of the mailing of notification of the determination being appealed. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302. A determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if an appeal is not perfected. 38 C.F.R. §§ 3.104, 20.1103 (1999). Analysis Initially, the Board finds that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 in that his claim is plausible, that is, meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board is satisfied that all relevant facts have been properly developed for appellate consideration. The appellant argues that a 100 percent evaluation should have been assigned for PTSD effective from 1993, when his original claim for service connection was submitted. In this regard, the Board notes that, pursuant to the provisions of 38 U.S.C.A. 5110(b)(1) and 38 C.F.R. 3.400(b)(2)(i), the veteran is only entitled to benefits from the date of his claim, because he did not submit a claim for benefits within one year of his separation from service. The Board notes that the veteran filed his original claim of entitlement to service connection for PTSD on November 22, 1993. In November 1994 the RO granted service connection for PTSD with assignment of a 10 percent evaluation effective from November 22, 1993. Before this rating decision became final, the veteran submitted a statement, dated March 20, 1995, which reported that he had been in receipt of treatment for PTSD in March 1995. After reviewing the March 20, 1995, statement, the Board finds that such statement should have been construed as a notice of disagreement with the November 1994 rating decision. 38 C.F.R. §§ 3.1(p). Thereafter, the veteran was provided with a statement of the case in April 1996, he subsequently perfected his appeal in April 1996, and the evaluation for PTSD was increased to 100 percent by the Board in October 1997. Accordingly, inasmuch as the veteran perfected a timely appeal of the November 1994 RO rating decision on his original claim for service connection for PTSD, dated November 22, 1993, and the Board determined in October 1997 that the veteran's PTSD symptomatology supported a total schedular rating since the last date of full-time employment, in May 1993; the Board finds that an effective date retroactive to November 22, 1993, for a 100 percent evaluation for PTSD is warranted. 38 C.F.R. §§3.1(p), 3.155(a), 3.157(b)(1); 3.400(o). Finally, the Board has considered whether the provisions of 38 C.F.R. § 3.114(a) may permit retroactive payments for up to one year prior to the date of claim. However, an earlier effective date under these provisions is permitted only if it can be established that the veteran met all eligibility criteria for service connection for PTSD on April 11, 1980, and such eligibility is shown to exist continuously from that date to November 22, 1993, the date of his informal claim. VAOPGCPREC 26-97. After careful review of all of the evidence of record, the Board finds that an effective date prior to November 22, 1993, is not warranted pursuant to the provisions of 38 C.F.R. § 3.114(a) because the record contains no evidence that, as of the time of the liberalizing VA issue on April 11, 1980, the appellant had a diagnosis of PTSD, a main criterion for an award of service connection. The Board thus finds that the proper effective date for an award of a 100 percent evaluation for PTSD is November 22, 1993, the date of receipt of the appellant's original claim for service connection. ORDER Entitlement to an effective date retroactive to November 22, 1993, for assignment of a 100 percent evaluation PTSD is granted, subject to the regulations pertinent to the disbursement of monetary funds. RONALD R. BOSCH Member, Board of Veterans' Appeals