Citation Nr: 0002308 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 96-45 087 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than December 14, 1995 for a 100 percent evaluation for post-traumatic stress disorder. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD L. Spear Ethridge, Associate Counsel INTRODUCTION The veteran had active duty from May 1967 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating actions by the Oakland, California Regional Office (RO) of the Department of Veterans Affairs (VA). The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") was known as the United States Court of Veterans Appeals prior to March 1, 1999. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. In April 1996, the veteran stated in writing that he wanted an increased evaluation for his service-connected post-traumatic stress disorder disability. 3. A routine VA outpatient treatment record on December 14, 1995, was accepted by the RO as an informal claim for increased rating for the veteran's post traumatic stress disorder. 4. In a November 1998 rating decision, the RO granted a 100 percent evaluation for the veteran's post traumatic stress disorder, effective December 14, 1995. 5. It is not factually ascertainable that an increase in the veteran's post-traumatic stress disorder had occurred prior to December 14, 1995. CONCLUSION OF LAW The criteria for an effective date earlier than December 14, 1995, for a 100 percent rating for post traumatic stress disorder have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.160, 3.400 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is "well- grounded" within the meaning of 38 U.S.C.A. § 5107. That is, the veteran has presented a claim which is plausible. All relevant facts have been properly and sufficiently developed, and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Factual Background In January 1992, the veteran submitted an application for compensation and indicated that he wanted service connection for post-traumatic stress disorder. Therein he indicated that he had not been hospitalized or furnished domiciliary care within the past three months. On March 12, 1992, the veteran underwent a VA examination for compensation purposes. It was noted that the veteran had not been previously evaluated. The signing physician dictated his evaluation, and indicated that the diagnoses rendered were based on the Diagnostic and Statistical Manual of Mental Disorders, Third Edition, of American Psychiatric Association (DSM-III), according to the examiner. The DSM-3R diagnoses were: Axis I. Post Traumatic Stress Disorder, chronic; Dysthymic disorder; and Alcoholism in remission since 1978. Axis II. Compulsive personality traits... Axis IV. 3, Work Stress, 6, Catastrophic combat stress. In a June 1992 rating decision, service connection for post traumatic stress disorder was established, and a 10 percent evaluation was assigned based on mild symptoms as shown at VA examination and on only mild impairment of social and occasional functioning. The RO noted that the veteran had remained employed full time. The veteran was notified of the same. The effective date of the award was January 22, 1992. VA records dated from December 14, 1995 to July 19, 1995 were submitted for the record. On December 14, 1995, the veteran was seen at VA on an outpatient basis. The veteran reported hearing voices, described as low, and muffled, and with moans and groans; and that the voice told him to kill himself. The veteran reported that he had been successful in ignoring the voice. The examiner otherwise noted that the veteran was casually attired and neatly groomed. He was pleasant and appropriate with behaviors. The veteran reported that the voices that told him to "shoot himself" were heard approximately every two months. It was also noted that the veteran wanted a written excuse from wearing seatbelts in his motor vehicle because wearing the seatbelt brought on triggers of his helicopter crashes in service. He had just received a motor vehicle violation ticket for not wearing his seatbelts. On April 19, 1996, the veteran submitted a statement and requested a re-evaluation of his service-connected post- traumatic stress disorder disability. In May 1996, he underwent a VA examination for mental disorders. In a July 1996 rating decision, the evaluation was increased from 10 to 30 percent disabling, effective April 19, 1996. In August 1996, the veteran submitted his notice of disagreement and treatment records showing continuous treatment at VA for post-traumatic stress disorder and other ailments. Some of those records have been described above. He indicated that he wanted an increased evaluation, and an earlier effective date. In August 1996, the RO confirmed the 30 percent evaluation, and current effective date. At that time the RO also issued a statement of the case, regarding an evaluation in excess of 30 percent for post-traumatic stress disorder and an effective date earlier than April 19, 1996 for post-traumatic stress disorder. An August 1996 VA treatment record was submitted for the record. It shows the same assessment of post-traumatic stress disorder, and the veteran's corresponding symptoms therein; to include increased anger, and hopelessness. Also, in August 1996, a VA licensed social worker from the Post-Traumatic Stress Disorder Clinical Team, submitted a letter on the veteran's behalf. He sated that he had been working with the veteran since his first visit to the clinic on December 14, 1995. The letter went on to describe the veteran's symptoms of depressed mood, nightmares, panic attacks, anger and suicidal ideation. The examiner opined that a higher rating evaluation was warranted and commented on the veteran's further prognosis. Further, in August 1996, the RO was made aware of congressional interest on behalf of the veteran, by way of correspondence from a member of Congress with attached documents showing the veteran's contentions. In a September 1996 rating decision, there was no change in the rating of 30 percent. In October 1996, the veteran submitted his substantive appeal and stressed that he wanted an evaluation of 50 or 70 percent for post-traumatic stress disorder. He described his past trauma. In September 1996, another person from the Post Traumatic Stress Disorder Clinical Team wrote a letter on the veteran's behalf. This person held a Ph.D. degree. He described that the veteran suffered from severe and chronic post-traumatic stress disorder, and the symptoms that went along with that suffering. The letter focused on the fact that the veteran had a great deal of trouble conducting routine personal business via the telephone, and suggestions to help the veteran with his anxiousness in that regard. From June 1997 to August 1997, the veteran was hospitalized at VA for post-traumatic stress disorder, and received a temporary total disability evaluation from VA for that time period. Other outpatient records were received showing the veteran's continuous treatment during 1997 for this disability. March 1998 VA records indicate that the veteran was hospitalized again for three days for post-traumatic stress disorder. In an April 1998 rating decision, the disability evaluation was increased from 30 percent disabling to 70 percent disabling. The effective date for the 70 percent evaluation was from December 14, 1995. An April 1998 Report of Contact shows that the RO spoke with a congressional representative who had made inquiry on the veteran's behalf. In the conversation, it was noted that a retroactive payment for $19,434 was authorized for payment to the veteran, based on his entitlement to an increased evaluation for his service-connected disability. In an April 1998 correspondence from the veteran, he indicated that he was appreciative of the increased rating to 70 percent, but that he felt that he was totally disabled due to his service-connected disability (TDIU); and that a 100 percent rating was warranted. He submitted an application for TDIU, and also indicated that he believed that his 30 percent rating should have been effective back to February 7, 1988, the date of his first wife's death due to suicide; and that a "50 percent rating" should have been applied back to March 1, 1989, the date that he stopped working. In an November 1998 rating decision, the disability evaluation was increased from 70 percent disabling to 100 percent disabling. The effective date for the 100 percent evaluation was from December 14, 1995. The veteran was notified of the same, and presumably received another retroactive benefit check from VA. Additional VA treatment records were obtained for the record, showing the veteran's care during 1998 and 1999. While the RO requested any treatment records from January 1992 to the present, it received duplicate records showing treatment beginning on December 14, 1995 to records with an end date in 1999. The RO also contacted the veteran's former railroad employer for records, and received no response. Legal Analysis The Board has reviewed the record in its entirety, and determines that the veteran is not entitled to an effective date earlier than December 14, 1995 for his 100 percent service-connected post traumatic stress disorder disability. The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 1991). See 38 C.F.R. § 3.400(o)(1) (1998). An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one- year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "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." 38 U.S.C.A. § 5110(b)(2) (West 1991). See 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). The term "increase" as used in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 means an increase to the next disability level. Hazan v. Gober, 10 Vet. App. 511 (1997). A claim is 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); 3.155 (1998). The regulation which governs informal claims, 38 C.F.R. § 3.155 (1998), provides as follows: (a) Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant . . . may be considered an informal claim. Such informal claim must identify the benefit sought. Id. Further, under 38 C.F.R. § 3.157, an informal claim may consist of a report of examination. A report of examination will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Id. In order to apply the above statutory provisions to the instant appeal, it is necessary to determine the date of the veteran's claim and the date that it became factually ascertainable that the veteran's service-connected psychiatric disability increased in severity. The veteran specifically contends that effective dates should have been established from February 7, 1988 and March 1, 1989. These are dates which correspond to crisis in his personal life, and which, presumably, stand for the contention that his post-traumatic stress disorder symptoms worsened during these crises. In any event, the veteran is generally contending that an effective date earlier than December 14, 1995 is warranted. The Board determines that the date of receipt of the veteran's claim was on April 19, 1996. That is the date that VA received the veteran's statement in writing that he wanted an increased evaluation for post-traumatic stress disorder. In that regard, the effective date for an increased rating shall not be earlier than the date of receipt of application therefor. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). The other indication in the record that the veteran applied for an increased rating prior to this time, is the showing of his December 14, 1995 treatment at VA. When the RO received information showing that the veteran was treated on that date, it correctly used that treatment record as an informal claim for increase and granted the veteran's increased evaluation(s) back to December 14, 1995 instead of using the effective date of April 19, 1996. See 38 C.F.R. § 3.157(b)(1). All congressional correspondence was received after these dates, and therefore such correspondence would be useless if considered to be informal claims. See 38 C.F.R. § 3.155. The Board determines that the "exception" to the general rule above does not apply, in that it was not "factually ascertainable" that the veteran's disorder had increased in severity within the one-year period preceding the date of receipt of his claim; that is one year prior to December 14, 1995. See 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Based on the symptoms provided in the VA treatment record of December 14, 1995, it was factually ascertainable that the veteran's disorder had increased in severity at that time because he heard voices and had ideation of suicide. However, since that date has already been accepted as the date of receipt, if the record showed worsening within a year preceding December 14, 1995, the Board would be obligated to give the veteran an earlier effective date. However, the record does not show the same. In fact, December 14, 1995 is the earliest treatment record on file, except for the VA examination in January 1992, which corresponded to the original claim for service connection. That examination corresponded to the initial 10 percent disability evaluation established by the RO with the grant of service connection. Therein, the examiner indicated mild impairment, and the veteran did not appeal the RO's final rating action. That is, the veteran did not file a notice of disagreement to the decision within the one-year period following the date of notification. That determination is final as to the evidence then of record. See 38 U.S.C.A. §§ 5108, 7105 (West 1991 & Supp. 1999); 38 C.F.R. § 20.1100 (1998). All other treatment and hospitalization records submitted for this claim, including the medical opinions of record, are for dates corresponding to time after December 14, 1995. In further support of this notion, the record reflects that the veteran's licensed social worker, in a letter written on the veteran's behalf in August 1996, indicated that the veteran had first been treated at the post-traumatic stress disorder clinic on December 14, 1995. Therefore, the date of the claim for an increased rating must be considered to be December 14, 1995, as there are no other applicable records for which to derive a factually ascertainable increase in the veteran's disability. 38 C.F.R. § 3.400(o)(2). Regarding the veteran's contention that the effective date should go back to March February 1988 and March 1989, respectively, the Board notes that although the veteran continued to submit evidence in support of his claim throughout this appeal, the first evidence of record to document an increase in the disability was dated December 14, 1995. He has not submitted evidence showing that his disorder increased in severity in February 1988 or March 1989, when he underwent personal tragedy or crisis in his life. So the Board cannot consider those time periods for determining that it was factually ascertainable that an increase in the disability had occurred. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2) (1998). Moreover, the veteran did not have a pending claim before the RO prior to December 1995. Accordingly, the veteran's claim for an earlier effective date is denied. ORDER An effective date earlier than December 14, 1995, for a 100 percent schedular evaluation for post traumatic stress disorder is denied. Deborah W. Singleton Member, Board of Veterans' Appeals