Citation Nr: 0810509 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 04-04 510 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than June 30, 1995 for service connection for PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The veteran served on active military duty from July 1967 to March 1970. The appeal comes before the Board of Veterans' Appeals (Board) from an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, in pertinent part finding that entitlement to an effective date for service connection for PTSD earlier than June 30, 1995, is not warranted. The veteran testified before the undersigned Acting Veterans Law Judge at a videoconference hearing conducted between the RO and the Board Central Office in October 2007. A transcript of that hearing is contained in the claims folder. By a VA Form 9 submitted in February 2004 to perfect the current appeal, the veteran also sought to clarify that he desired an earlier effective date for the grant of a 70 percent evaluation for his service-connected PTSD. This claim is referred to the RO for appropriate action. FINDINGS OF FACT 1. There is no factual dispute in this case. 2. The veteran submitted a claim for service connection for PTSD in June 1982. 3. The RO issued a letter in November 1982 requesting evidence required in connection with that claim, to which the veteran failed to reply within one year. 4. No colorable claim, either formal or informal, for service connection for PTSD was received from November 1982 and prior to June 30, 1995. CONCLUSION OF LAW The criteria for an effective date earlier than June 30, 1995, for the grant of service connection for PTSD, have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.158 (1982); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the present case, pre-adjudication VCAA notice was provided to the veteran by a letter dated in June 2002. The notice informed the veteran of the type of evidence needed to support a claim for service connection, but did not ultimately provide information about the kinds of evidence required to support the veteran's claim for an earlier effective date for service connection. However, that failure to provide adequate VCAA notice is not fatal to the present adjudication, because the claim for an earlier effective date for service connection for PTSD is here denied as a matter of law because there are no facts in dispute, and hence there is no reasonable possibility that further notice and development of the claim will further the claim for an effective date for service connection for PTSD earlier than June 30, 1995. See Sabonis v. Brown, 6 Vet. App. 426 (1994). II. Claim for Earlier Effective Date for Service Connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). The effective date for disability compensation claims based on direct service connection is the day following separation from active service, or the date entitlement arose, if the claim is received within 1 year after separation from service; otherwise, the effective date is the date of the receipt of claim, or the date that the entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The provisions of 38 C.F.R. § 3.158(a) state that where evidence requested in connection with an original claim is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, compensation based on such evidence shall commence not earlier than the date of filing the new claim. Id. As noted above, the facts in this case are not in dispute. The veteran in June 1982 submitted a claim for service connection for PTSD. The RO in November 1982 issued a letter to the veteran requesting that he provide a statement as to the traumatic events in service upon which he was basing his claim for service connection for PTSD. He was informed by that letter that he had one year to respond to the letter, for his present claim to be considered. The veteran did not respond to that letter request within one year. He next submitted a claim for service connection for PTSD on June 30, 1995. The information requested in the November 1982 letter was necessary to the claim because a claim for service connection for PTSD must be based on an identified in-service stressor, and the veteran had identified none in his June 1982 claim. 38 C.F.R. § 3.304(f) (2007). The veteran does not contend that he did not receive this November 1982 letter, and there is no indication otherwise that the letter was not properly issued to the veteran at his then-current address. The veteran's sole basis, as presented in hearing testimony, to support his earlier effective date claim, is that his DD214 was of record at the time of his June 1982 claim, and that DD214 included documentation of his receipt of a Combat Action Ribbon. Again, these facts are not in dispute. However, the veteran was still required to respond to the information request of November 1982, to support his claim. His failure to have done so within one year of that notice constituted abandonment of his claim. 38 C.F.R. § 3.158(a). This June 1982 claim is the sole basis of the veteran's current claim for an earlier effective date for service connection for PTSD, and the Board identifies from the record no other plausible basis for granting an effective date earlier than the effective date of June 30, 1995, already established for the grant of service connection for PTSD, with no submission between November 1982 and June 30, 1995, which may reasonably be interpreted as a formal or informal claim for service connection for PTSD. 38 C.F.R. § 3.155. The Board must accordingly deny the claim for an earlier effective date for service connection for PTSD as a matter of law, there being no material facts in dispute. See Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to an effective date for service connection for PTSD earlier than June 30, 1995, is denied. ____________________________________________ MICHAEL A. PAPPAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs