Case A26038961

Summary

The veteran, a veteran who served from August 1998 to October 2005, including receiving the Purple Heart and Combat Action Ribbon, appeals the denial of an earlier effective date for an increased rating for PTSD. The veteran sought an increased rating for PTSD, claiming an earlier effective date prior to July 2, 2018. The Board reviewed evidence of record up to the October 2019 agency of original jurisdiction decision, as the veteran elected not to provide testimony at the February 2025 Board hearing and waived further argument. The veteran underwent a private psychological evaluation on July 2, 2018, the same day he filed his claim for an increased rating, but this evaluation did not indicate an increase in symptoms within the prior year. A subsequent VA PTSD examination in October 2018 noted increased symptoms related to a divorce but did not link this increase to the one-year period prior to the July 2, 2018 claim. The Board denied the claim for an earlier effective date, citing that the claim was received on July 2, 2018, and no evidence showed an increase in disability severity within the year prior to that date. The Board applied the doctrine of reasonable doubt but found the evidence weighed against the claim, thus the doctrine was not applicable.

Rationale

No evidence of increased symptoms in the prior one-year period.; Private evaluation did not show increased symptoms onset in prior year.; VA exam noted increased symptoms related to divorce, but not within the relevant timeframe.; Board applied benefit of doubt, but evidence weighed against claim.

Full Decision Text

Citation Nr: A26038961
Decision Date: 04/27/26	Archive Date: 04/27/26

DOCKET NO. 210317-147779
DATE: April 27, 2026

ORDER

Entitlement to an effective date prior to July 2, 2018 for the award of an increased rating of 70 percent rating for posttraumatic stress disorder (PTSD), is denied.

FINDING OF FACT

The Veteran filed a claim seeking an increased rating for PTSD on July 2, 2018 and it is not factually ascertainable that his PTSD disability increased in severity within one year prior to the date this claim was filed.  

CONCLUSION OF LAW

The criteria for an effective date prior to July 2, 2018, for the 70 percent increased disability evaluation for PTSD, have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400; Hazan v. Gober, 10 Vet. App. 511 (1997); VAOGCPREC 12-98.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1998 to October 2005.  His military awards include the Purple Heart and the Combat Action Ribbon.  

In October 2020 the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a October 2019 rating decision.  On February 16, 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior October 2019 decision.  

In the March 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  A Board hearing was held on February 20, 2025.  The Veteran, as explained by his representative, chose not to provide testimony and asked that the appeal be decided on the current evidence of record.  The Veteran's representative also submitted a February 19, 2025 statement waiving the remaining time to submit additional argument.

Therefore, the Board may only consider the evidence of record at the time of the October 2019 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the decision, which was subsequently subject to higher-level review and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801.  

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

Entitlement to an earlier effective date for a traumatic brain injury (TBI) and an increased rating for PTSD with TBI

The February 20, 2025 hearing identified the appeal issues of entitlement to an earlier effective date for service connection for a traumatic brain injury (TBI) and an increased rating for PTSD with TBI.  On review of the claims file, these issues are not included in the current appeal (Docket Number 210317-147779).  Procedurally, the Veteran submitted a July 2020 claim which sought service connection for a TBI.  A February 4, 2021 rating decision granted service connection for a TBI which was rated together with the PTSD disability as a single PTSD and TBI disability.  In December 2021, the Veteran submitted a VA Form 10182, appealing the February 2, 2021 rating decision.  The appeal was docketed at the Board Docket Number 211208-203385.  On March 21, 2021, a Board hearing was conducted as to the appeal.  Currently, Docket Number 211208-203385 remains pending at the Board.  The effective date for TBI and the evaluation of PTSD and TBI are not included in the current appeal and they are not addressed below.  


 February 4, 2021 rating decision granted service connection for a TBI which was rated together with the PTSD disability as a single PTSD and TBI disability.  In December 2021, the Veteran submitted a VA Form 10182, appealing the February 2, 2021 rating decision.  The appeal was docketed at the Board Docket Number 211208-203385.  On March 21, 2021, a Board hearing was conducted as to the appeal.  Currently, Docket Number 211208-203385 remains pending at the Board.  The effective date for TBI and the evaluation of PTSD and TBI are not included in the current appeal and they are not addressed below.  

Entitlement to an effective date prior to July 2, 2018 for the award of an increased rating of 70 percent rating for posttraumatic stress disorder (PTSD), now rated as PTSD and traumatic brain injury (TBI)

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or 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 provides that the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997) (When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application).  In other words, the effective date of an increased rating claim is when it is ascertainable that an increase in disability has occurred, if the application is received within one year from such date.  The award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was ascertainable that the disorder had increased in severity during that time. See also VAOGCPREC 12-98.

Under the AMA, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, 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(a)(1); 38 C.F.R. § 3.2500(h)(1).  For purposes of determining the effective date of an award under these provisions, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession:  (A) a request for higher-level review on or before the date that is one year after the date on which the AOJ issues a decision; (B) a supplemental claim on or before the date that is one year after the date on which the AOJ issues a decision; (C) a notice of disagreement on or before the date that is one year after the date on which the AOJ issues a decision; (D) a supplemental claim on or before the date that is one year after the date on which the Board issues a decision; or (E) a supplemental claim on or before the date that is one year after the date on which the Court issues a decision.  Id.

The Veteran seeks an effective date, prior to July 2, 2018, for the grant of a 70 percent rating for PTSD.  A December 2005 rating decision granted service connection for PTSD and applied an initial 30 percent rating.  On July 2, 2018, the Veteran filed a claim seeking an increased rating for this disability.  A November 2018 rating decision granted a 50 percent rating from July 2, 2018.  Under the legacy system, the Veteran appealed the November 2018 rating decision by submitting a January 2019 notice of disagreement (NOD).  An October 2019 AMA rating decision granted a 70 percent rating from July 2, 2018.  In October 2020, under the AMA system, the Veteran requested HLR as to the effective date of the 70 percent PTSD rating.  The February 16, 2021 HLR rating decision now on appeal denied an earlier effective
  On July 2, 2018, the Veteran filed a claim seeking an increased rating for this disability.  A November 2018 rating decision granted a 50 percent rating from July 2, 2018.  Under the legacy system, the Veteran appealed the November 2018 rating decision by submitting a January 2019 notice of disagreement (NOD).  An October 2019 AMA rating decision granted a 70 percent rating from July 2, 2018.  In October 2020, under the AMA system, the Veteran requested HLR as to the effective date of the 70 percent PTSD rating.  The February 16, 2021 HLR rating decision now on appeal denied an earlier effective date.  Thus, the Veteran has continually pursued his claim from July 2, 2018, the date he initially filed the increased rating claim.  

The Veteran underwent a private psychological evaluation on July 2, 2018, the same day he file his increased rating claim.  The evaluation did not show increased symptoms onset in the prior one year period.  An October 2018 VA PTSD examination noted the Veteran's PTSD symptoms increased when he divorced two and a half years earlier.  It confirmed the Veteran had been continuously employed for the prior 6 years at a skilled nursing facility.  The examination report indicated the Veteran had recently been involved in an argument with his supervisor, however there is no evidence the argument occurred in the one year period prior to the July 2, 2018 claim.  

Because effective dates in claims for increase - as is the case here - will be the date of receipt of the claim or the date entitlement arose (whichever is later), the Board is prohibited, as a matter of law, from assigning an effective date prior to July 2, 2018, as this is the date upon which VA received the Veteran's claim.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.  Although an exception applies to the general rule, allowing an earlier effective date where it is factually ascertainable that the Veteran's disability increased in severity in the year prior to his claim, there is no evidence his symptoms increased during this time frame.  Accordingly, the claim for an earlier effective date for the 70 percent rating for PTSD must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the evidence persuasively weighs against the claim, the doctrine is not for application.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Celtnieks, Jeanne

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.