Case A26040894

JENNA BRANT · 2026 · Case ID: A26040894

GRANTED

Summary

The Veteran, who served from July 1990 to June 1994 and again from December 2004 to January 2006, including service in Iraq from January 2005 to December 2005, appeals the denial of an earlier effective date for his 70 percent rating for Posttraumatic Stress Disorder (PTSD). The Board found that the Veteran's claim for an earlier effective date for his 70 percent PTSD rating was pending from January 20, 2006. The Board determined that the August 2007 rating decision granting service connection for PTSD at 50 percent was not final because the Veteran submitted a July 2008 statement within one year, which was considered new and material evidence supporting a higher rating. Furthermore, the June 2010 rating decision denying a PTSD rating in excess of 50 percent was also not final, as VA constructively received a new and material August 2010 VA treatment record within the appeal period. This record indicated worsening PTSD symptoms, supporting a rating higher than 50 percent. The Board reviewed the evidence, including VA examinations from July 2007 and February 2009, the Veteran's July 2008 statement, and the August 2010 VA treatment record. Based on a holistic analysis of the severe symptoms, including homicidal and suicidal ideation and impaired impulse control, the Board found that a 70 percent rating was warranted for the entire appeal period. The Board granted an earlier effective date of January 20, 2006, for the 70 percent PTSD rating, which fully granted the benefit sought on appeal.

Rationale

Evidence supports 70% rating from January 20, 2006.; Symptoms of homicidal/suicidal ideation and impaired impulse control noted.; Holistic analysis of symptoms considered.

Special Benefit

EARLIER EFFECTIVE DATE

Docket No.

240429-438366

Full Decision Text

Citation Nr: A26040894
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 240429-438366
DATE: April 30, 2026

ORDER

Entitlement to an earlier effective date of January 20, 2006, for the award of a 70 percent rating for posttraumatic stress disorder (PTSD) is granted.

FINDINGS OF FACT

1. The evidence persuasively supports that the August 2007 rating decision which granted service connection for PTSD and awarded a 50 percent initial rating never became final as new and material evidence was received within one year of its issuance and the agency of original jurisdiction (AOJ) did not consider the new and material evidence.

2. The Veteran's PTSD manifested by symptoms resulting in deficiencies in most areas throughout the entire period on appeal.

CONCLUSION OF LAW

The criteria for an earlier effective date of January 20, 2006, for the grant of a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.156, 3.400, 4.130, Diagnostic Code (DC) 9411.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from July 1990 to June 1994, and from December 2004 to January 2006, with service in Iraq from January 2005 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal on appeal from an April 2024 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).

Following the April 2024 supplemental statement of the case (SSOC), the Veteran filed an April 2024 VA Form 10182, Decision Review Request: Board Appeal Notice of Disagreement (NOD), in which he opted into the modernized review system (AMA) and elected the Evidence submission docket. 38 C.F.R. § 19.2(d).

Therefore, the Board may only consider the evidence of record at the time of the April 2024 decision, as well as any evidence submitted by the Veteran and his representative with, or within 90 days from receipt of, the NOD. 38 C.F.R. § 20.303. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the claims. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran may file a Supplemental Claim 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board notes in a September 2024 decision, it granted an increased PTSD rating to 70 percent effective August 27, 2013, but not earlier. The Board also granted service connection for a sleep disability, to include obstructive sleep apnea; granted service connection for left side nerve damage, to include of the left shoulder; denied a rating in excess of 10 percent for a skin disability; and denied a rating in excess of 10 percent for scars, to include residual stab wound to the abdomen. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court) for the issue of an earlier effective date for the 70 percent PTSD rating only. Pursuant to a September 2025 Joint Motion for Partial Remand (JMR), the Court issued an October 2025 Order that vacated the denial and remanded the issue back to the Board.

Entitlement to an effective date prior to August 27, 2013, for the award of a 70 percent rating for PTSD.

Legal Criteria

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. 38 U.S.C. § 5110(a) provides that "the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, 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."

Except as otherwise provided, the effective date of an evaluation
effective date prior to August 27, 2013, for the award of a 70 percent rating for PTSD.

Legal Criteria

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400.

Regarding the date of entitlement, the term "date entitlement arose" is not defined in the current statue or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober; 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the facts found. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008).

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999).

An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011).

The Veteran's PTSD has been evaluated under the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, DC 9411.

Under the General Formula, a 50 percent evaluation is warranted for PTSD where there is occupational and social impairment with reduced reliability and productivity due to such symptoms 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; and difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere
38 C.F.R. § 4.130, DC 9411.

A 70 percent rating is assigned when 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 cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id.

A 100 percent rating is assigned when symptoms such 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 cause total occupational and social impairment. Id.

Under the 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).

Analysis

The Veteran contends that an earlier effective date for his 70 percent PTSD rating is warranted, to include back to January 20, 2006, the date following his separation from service.

As noted above, in a September 2024 decision, the Board granted an increased PTSD rating to 70 percent effective August 27, 2013, but not earlier. The Veteran appealed and per the September 2025 JMR, the parties agreed that the denial of an earlier effective date prior to August 27, 2013, for the 70 percent PTSD rating should be vacated and remanded. The JMR noted following the June 2010 rating decision which denied a PTSD rating in excess of 50 percent, relevant VA treatment records were received by VA, to include a psychiatric record dated August 2010. The Board was directed to consider whether such record is considered new and material evidence and not addressed by the RO, such that the June 2010 rating decision did not become final and the claim remained pending prior to August 27, 2013. Although the Board was directed to review the evidence of record to determine whether the June 2010 rating decision was final, when affording the Veteran all reasonable doubt, the Board will review the evidence back to the initial date of service connection to determine whether an earlier effective date prior to August 27, 2013, is warranted for the 70 percent PTSD rating, and if so, how far back the effective date is supported.

VA defines new and material as follows: new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the record evidence at the time of the last prior final denial of the claim sought to be reopened; and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

Per the September 2025 JMR, and in light of the Veteran's relevant procedural history, the Board will review the evidence associated with his PTSD back to the initial date of service connection, January 20, 2006. Procedurally, the Board notes the Veteran's claim for service connection for PTSD was initially granted in an August 2007 rating decision issued under the legacy review system and he was awarded a 50 percent rating effective January 20, 2006, the date following his separation from service. The Veteran was notified of the decision by letter later that month. The Veteran did not submit an NOD to appeal the August 2007 rating decision; however, he did submit a July 2008 statement within one year which asserted that his service-connected PTSD had worsened. He reported in this statement that he lost his job or was in danger of losing his job due to his PTSD symptoms, to include getting easily upset, not being able to work with others, wanting to be isolated and alone, and getting angry when he was instructed to do something by his supervisor. The Veteran stated due to such emotional problems he was unable to keep the job he had at that time. He further noted ongoing symptoms of stress, anxiety and angry outbursts, including "yelling and screaming" at his former spouse, and that he escaped by drinking alcohol.

After a careful review of the evidence, including the July 2008 statement submitted within one year of the August 2007 rating decision issued under the legacy review system, the Board finds new and material evidence was submitted within one year of the August 2007 rating decision. The Board determines the July 2008 statement submitted by the Veteran is new, as it was not previously submitted to agency decision makers, and is also material, as it supports a higher PTSD rating for the Veteran than the present 50 percent rating. Additionally, such statement was not addressed by the RO. Thus, the August 2007 rating decision did not become final and therefore, the claim was still pending at the time when the Veteran submitted his subsequent November 2008 claim for an increased rating.

Next, the Board reviews the June 2010 rating decision issued under the legacy review system, which denied a PTSD rating in excess of 50 percent, to determine if such decision was final as to the PTSD rating. After careful review, the Board determines the June 2010 rating decision was also not final and therefore, the claim was still pending at the time of the August 2013 claim for an increased PTSD rating.

Here, within one year of the June 2010 rating decision, August 2010 VA treatment record suggested worsening symptoms, suggestive of a higher PTSD rating. The August 2010 VA treatment record noted the Veteran experienced extremely troubling memories, thoughts of images of past stressors, he had ongoing trouble sleeping with disturbing dreams, he re-experienced his stressors and would often get very upset. The August 2010 record indicated the Veteran had avoidance, stressful memories, feeling distant or emotionally numb, having extreme irritability or angry outbursts, difficulty concentrating and he would feel jumpy or easily startled. He further reported he had severe difficulty getting along with other people due to his PTSD.

Because new and material evidence was received within one year of the June 2010 legacy rating decision, the Board must determine whether the RO was in constructive possession of that evidence within one year of the June 2010 decision. See 38 C.F.R. § 3.156(b). In deciding Lang v. Wilkie, the Federal Circuit found that VA medical records within the appeal period following an RO decision are constructively received, regardless of whether the adjudicator had knowledge of their existence. 971 F.3d 1348 (Fed. Cir. 2020). Moreover, when evidence is constructively received within the appeal period, the underlying rating decision does not become final until a determination is made as to whether such evidence is new and material. Id.

The Board notes the August 2010 VA psychiatric treatment record is a VA medical record which was generated during the appeal period following the June 2010 rating decision. Therefore, that record was constructively received by VA. Further, the Board determines the August 2010 VA treatment record is deemed new and material evidence. This evidence was constructively received following the June 2010 rating decision and supports a PTSD rating in excess of
existence. 971 F.3d 1348 (Fed. Cir. 2020). Moreover, when evidence is constructively received within the appeal period, the underlying rating decision does not become final until a determination is made as to whether such evidence is new and material. Id.

The Board notes the August 2010 VA psychiatric treatment record is a VA medical record which was generated during the appeal period following the June 2010 rating decision. Therefore, that record was constructively received by VA. Further, the Board determines the August 2010 VA treatment record is deemed new and material evidence. This evidence was constructively received following the June 2010 rating decision and supports a PTSD rating in excess of the 50 percent rating assigned during that period due to the severity of the symptoms noted. Thus, the Board finds the June 2010 rating decision did not become final and the claim remained pending at the time when the August 2013 increased rating claim was submitted.

In sum, the Board finds the claim for an increased PTSD rating is pending from January 20, 2006, the date following his separation from service. As noted, the August 2007 rating decision was not final, as the July 2008 Veteran's statement was submitted within one year of the decision and is found to be new and material evidence. Additionally, the Board determines the June 2010 rating decision was not final, as the Board was in constructive possession of the August 2010 VA treatment record and such record is deemed new and material evidence to support an increased PTSD rating. Therefore, in light of the provisions of § 3.156(b), the issue of an increased PTSD rating in excess of 50 percent remained pending from January 20, 2006.

Next, the Board will turn to whether a rating in excess of 50 percent is warranted for the Veteran's PTSD prior to August 27, 2013.

The Veteran was afforded a July 2007 VA examination in which the examiner indicated the Veteran had severe nightmares four to five times per week, night sweats, irritability, was easily startled, hypervigilant with insomnia and decreased socialization. The examiner noted the Veteran had suicidal and homicidal ideation, including thoughts about "killing his wife." The examiner noted further symptoms of insomnia and twice per week he had heart palpitations with associated sweating.

As discussed above, the Veteran submitted a July 2008 statement in which he asserted worsening symptoms, including getting easily upset, not being able to work with others, wanting to be isolated and alone, and getting angry when he was instructed to do something by his supervisor. The Veteran stated due to such emotional problems he was unable to keep his job. He further noted ongoing symptoms of stress, anxiety and angry outbursts, including "yelling and screaming" at his former spouse, and that he escaped by drinking alcohol.

The Veteran was afforded a February 2009 VA examination in which the examiner indicated the Veteran was very confrontational, with isolation and suicidal thoughts and ideation. She noted the Veteran had current and past thoughts about suicide but would not act on it. The examiner indicated he had panic attacks, severe depression and anxiety, as well as impaired impulse control. The examiner reported he had trouble controlling his anger and he would remain at home to avoid conflicts with others. The examiner further noted sleep impairment, including 3 to 4 hours of sleep per night which led to increased irritability and anger. She noted the severity of the Veteran's PTSD symptoms overall were moderate.

As discussed, an August 2010 VA treatment record was received which suggested worsening PTSD symptoms. The August 2010 examiner noted the Veteran experienced extremely troubling memories, thoughts of images of past stressors, ongoing trouble sleeping with disturbing dreams, he re-experienced his stressors and would often get very upset. The August 2010 record indicated the Veteran had avoidance, stressful memories, feeling distant or emotionally numb, having extreme irritability or angry outbursts, difficulty concentrating and would feel jumpy or easily startled. The Veteran also reported he had severe difficulty getting along with other people due to his PTSD.

Based on the evidence overall, the Board finds that an increased PTSD rating to 70 percent is warranted for the entire appeal period. From the initial date of service connection, January 20, 2006, the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas. The medical and lay evidence supports that the Veteran's PTSD has remained severe throughout the appeal period, to include symptoms of homicidal and suicidal ideation, as well as impaired impulse control. Thus, an increased PTSD rating to 70 percent is approximated for the entire appeal period. While an increased initial rating to 70 percent is warranted, a further increase to 100
reported he had severe difficulty getting along with other people due to his PTSD.

Based on the evidence overall, the Board finds that an increased PTSD rating to 70 percent is warranted for the entire appeal period. From the initial date of service connection, January 20, 2006, the Veteran's PTSD caused occupational and social impairment with deficiencies in most areas. The medical and lay evidence supports that the Veteran's PTSD has remained severe throughout the appeal period, to include symptoms of homicidal and suicidal ideation, as well as impaired impulse control. Thus, an increased PTSD rating to 70 percent is approximated for the entire appeal period. While an increased initial rating to 70 percent is warranted, a further increase to 100 percent is not supported for the Veteran's PTSD at any point in the record.

The Board reviewed the evidence to determine whether a rating in excess of 50 percent for the Veteran's PTSD was warranted prior to August 27, 2013, and the Board finds the evidence supports an increased rating to 70 percent. The July 2007 and February 2009 VA examination reports indicated symptoms of nightmares, irritability and anger, depression and anxiety, as well as homicidal and suicidal ideation and impaired impulse control. Further, in the July 2008 statement, the Veteran reported significant anger and social isolation, and the August 2010 VA treatment record noted symptoms of trouble sleeping, disturbing dreams, irritability, anger and severe difficulty with relationships. In light of the noted psychiatric symptoms overall, and when affording the Veteran all reasonable doubt, the Board finds his PTSD has caused occupational and social impairment with deficiencies in most areas throughout the entire appeal period. Thus, an initial 70 percent rating for PTSD is warranted.

(Continued on next page)

In sum, the Board finds that from January 20, 2006, an initial 70 percent rating is warranted for the Veteran's PTSD. Based on the noted contention, the Board considers this grant of an earlier effective date for the 70 percent PTSD rating to be a full grant of the benefit sought on appeal.

Jenna Brant

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Isaacs, Brandon

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.

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