Citation Nr: 18154188
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-54 689
DATE:	November 29, 2018
ORDER
Entitlement to an earlier effective date of November 13, 2014, but no earlier, for the award of a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. 
REMANDED
Entitlement to a rating in excess of 10 percent for mechanical backache is remanded.
FINDINGS OF FACT
1. A March 2015 rating decision awarded service connection for PTSD and assigned an initial 50 percent rating, effective November 13, 2014.  While the Veteran did not appeal that rating decision, additional evidence was associated with the record within the one-year appeal period, and the RO did not determination whether that evidence was new and material.
2. The Veteran’s PTSD has been manifested by occupational and social impairment with deficiencies in most areas for the entire appeal period.
CONCLUSIONS OF LAW
1. The March 2015 rating decision is not final.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(b); Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014).
2. The criteria for an effective date of November 13, 2014, but no earlier, for the award of a 70 percent rating for PTSD are met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty in the United States Navy from August 2001 to August 2004. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  In this regard, while the Veteran did not appeal this decision, application of 38 C.F.R. § 3.156(b) renders this decision non-final for reasons outlined further below in relation to the earlier effective date claim adjudicated herein. 
1. Entitlement to an effective date prior to February 16, 2016 for the award of a 70 percent rating for PTSD.
Generally, 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 later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. Id.
Here, a March 2015 rating decision awarded service connection for PTSD and assigned a 50 percent rating, effective November 13, 2014.  The Veteran did not appeal that decision.  However, additional VA treatment records were associated with the record within one year of that rating decision, and the RO did not determine whether such evidence submitted after the March 2015 rating decision was new and material.  See, e.g., April, May, June and August 2015 VA treatment records; 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242 (2010). Most recently, in Beraud v. McDonald, the United States Court of Appeals for the Federal Circuit held that VA has a statutory duty to determine the character of newly submitted evidence and that until such a determination is made, the claim does not become final. Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014).  Therefore, as VA did not fulfill its duty to determine whether VA treatment records were new and material, the March 2015 rating decision did not become final, and therefore, the appropriate period for consideration is from the effective date for the award of service connection, or November 13, 2014.
Initially, the Board notes that the Veteran is also diagnosed with nonservice-connected major depressive disorder and adjustment disorder.  See February 2015 VA examination report and March 2015 VA treatment record.  The evidence of record does not sufficiently distinguish the symptoms of these disorders from her service-connected PTSD.  Thus, the Board’s instant discussion attributes all of the Veteran’s mental health symptoms to her service-connected PTSD.  Mittleider v. West, 11 Vet. App. 181, 182 (1998). 
Moreover, upon review of the totality of the record, the Board finds that an effective date of November 13, 2014, for the award of a 70 percent rating is warranted for the Veteran’s PTSD, as it has consistently been manifested by occupational and social impairment with deficiencies in most areas since the date of her initial claim for service connection.  38 C.F.R. § 4.130, Diagnostic Code 9411.  Notably, the Veteran has endorsed suicidal ideation, depressed mood, chronic sleep impairment, and difficulty in establishing and maintaining effective relationships since this time, to include on her initial February 2015 VA examination.  Other symptoms endorsed during that examination and over the appeal period include anxiety, anger, impaired judgment and insight, and disturbances of motivation and mood.  See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas); see also March 2015 (dysphoric mood, slurred speech, noted need for counseling), April 2015 (sad/tearful mood and affect, fair judgment and insight regarding need for treatment), May 2015 (anxious mood and affect), June 2015 (angry mood and affect), July 2015 (sad mood and tearful affect, passive suicidal ideation), August 2015 (volatile mood, tangential speech, passive suicidal ideation), November 2015 (depressed mood, fair judgment and insight), and December 2015 VA treatment records (fair judgment and insight).
An effective date prior to November 13, 2014 is not warranted, as the Veteran did not file a claim of entitlement to service connection for PTSD or other psychiatric disorder prior to this date.  To the extent she asserts that she received medication for her psychiatric disorder in 2013 (see April 2016 Notice of Disagreement), records of treatment cannot constitute an informal original claim for service connection.  38 C.F.R. § 3.157(b) (2013).
REASONS FOR REMAND
2. Entitlement to a rating in excess of 10 percent for mechanical backache is remanded.
The Veteran was afforded VA examinations in connection with her service-connected back disability in February 2015 and March 2016.  These examinations do not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) (the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint).  Additionally, the Veteran indicates that the most recent 2016 VA examination report does not accurately portray her current disability picture.  See August 2018 Appellate Brief.  Accordingly, an updated VA examination consistent with the requirements set forth by Correia, as well as Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), considering the Veteran’s reports of flare-ups, is warranted on remand.  Any outstanding VA and private treatment records should also be secured.  
The matter is REMANDED for the following action:
1. Obtain any outstanding VA treatment records.
2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records.
3. Then schedule the Veteran for a VA examination to determine the current nature and severity of her back disability.  The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed, with all findings reported in detail.
The examiner should conduct all indicated tests and studies, to include range of motion studies.  The joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, and (4) in nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.  
In assessing functional loss, please also provide an opinion describing functional impairment of the Veteran’s back due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion.  If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment.  The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation.
4. Then readjudicate the Veteran’s entitlement to an increased rating for mechanical backache from November 13, 2014. 

 
S. BUSH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S.S. Mahoney, Associate Counsel

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