Citation Nr: 18160684
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-09 342
DATE:	December 27, 2018
ORDER
Entitlement to an effective date earlier than September 30, 2014 for the assignment of a 30 percent rating for posttraumatic stress disorder (PTSD) with other specified depressive disorder (acquired psychiatric disorder) is denied.
FINDINGS OF FACT
1. A December 2012 rating decision granted service connection for an acquired psychiatric disorder with a 30 percent rating, effective July 16, 2010.
2. The same December 2012 rating decision then assigned a noncompensable rating for an acquired psychiatric disorder, effective November 17, 2012. The Veteran was informed of this decision, and he did not file a timely appeal.
3. In a statement dated September 30, 2014, the Veteran filed a claim for an increased rating for his service-connected acquired psychiatric disorder.
4. A March 2015 rating decision increased the Veteran’s service-connected acquired psychiatric disorder to 30 percent, effective September 30, 2014. 
5. The competent and credible evidence of record does not indicate that the Veteran was entitled to an increased rating for his service-connected acquired psychiatric disorder in the year prior to his September 30, 2014 claim.
CONCLUSION OF LAW
The criteria for entitlement to an effective date earlier than September 30, 2014 for the assignment of a 30 percent rating for posttraumatic stress disorder (PTSD) with other specified depressive disorder (acquired psychiatric disorder) have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran had active duty service from September 2007 to November 2009.
In May 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record.
The Board observes that the Veteran has raised the issue of clear and unmistakable error (CUE) with respect to the December 2012 rating decision that resulted in a staged rating for his acquired psychiatric disorder. However, the electronic Veterans Appeals Control and Locator System (VACOLS) indicates that the Veteran's CUE claim has been acknowledged by the Regional Office (RO) and a statement of the case has been issued. However, the issue has yet to be certified to the Board. In other words, the CUE claim is in a separate appellate stream and the Board lacks jurisdiction over the matter at this time. 
Nothing in this decision should be taken as reflecting on that issue in any way, this decision is based solely on the facts as they apply to the appellate issue before the Board.
Entitlement to an effective date earlier than September 30, 2014 for the assignment of a 30 percent rating for posttraumatic stress disorder (PTSD) with other specified depressive disorder (acquired psychiatric disorder).
The Veteran seeks an effective date prior to September 30, 2014, for the award of a 30 percent rating for an acquired psychiatric disorder. 
Historically, a December 2012 rating decision granted service connection for an acquired psychiatric disorder with a 30 percent rating, effective July 16, 2010. The same December 2012 rating decision then assigned a noncompensable rating for the acquired psychiatric disorder, effective November 17, 2012. The Veteran was informed of this decision, but he did not file a timely appeal. Thus, the December 2012 rating decision is final. See 38 C.F.R. § 20.100.
The Board must next consider whether an earlier effective date is warranted based on the facts of this case. The effective date provisions for awards of increased disability compensation include a general rule which is that an award based on a claim for increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110(a). The corresponding VA regulation expresses this rule as “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400(o)(1).
The law provides an exception to this general rule governing claims “for increase” which exception governs awards “of increased compensation.” 38 U.S.C. § 5110 (a), (b)(2). If the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is ascertainable that the increase occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).
Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating and (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” Hazan v. Gober, 10 Vet. App. 511 (1992).
As discussed above, the Veteran filed a new claim for an increased rating for his acquired psychiatric disorder on September 30, 2014. A March 2015 rating decision awarded a 30 percent rating for his acquired psychiatric disorder, effective September 30, 2014. However, as noted above, the Board must review the evidence dating one year prior a claim for increase to determine the “earliest date as of which,” within the year prior to the claim, an increase in disability was factually ascertainable. See 38 C.F.R. § 3.400(o)(2). 
In the present case, the Board observes that there is no evidence which demonstrates that an increase in disability was factually ascertainable. The Veteran’s medical records generated during this period indicate that he stopped receiving mental health treatment in approximately February 2012 and did not seek additional treatment until approximately September 2014. In fact, the Veteran’s May 2017 testimony reveals that he stopped treatment around February 2012 because he was ready to attend the police academy and did not receive any more treatment until he was advised to do so, which was around the filing date of his September 30, 2014 claim for an increase. 
In sum, the December 2012 rating decision that assigned a noncompensable evaluation for the Veteran’s service-connected acquired psychiatric disorder, effective November 17, 2012 is final. The date of claim with respect to the current appeal is September 30, 2014, and there is no competent medical evidence dated within one year prior to the date of claim which demonstrates that an increase in the Veteran’s acquired psychiatric disorder was factually ascertainable. As such, the Board finds that the Veteran’s appeal for an effective date earlier than September 30, 2014, for the award of a 30 percent evaluation for an acquired 
 
psychiatric disorder must be denied. In reaching this decision the Board considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim the doctrine is not for application. 38 U.S.C. § 5107.
 
MICHAEL D. LYON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Miller, Associate Counsel 

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