Citation Nr: 0811054 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-11 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an effective date earlier than July 20, 1998, for the award of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Naomi E. Farve, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Jennifer Hwa, Associate Counsel INTRODUCTION The veteran served on active duty from December 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board) from a June 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted the veteran's claim for service connection and awarded a 100 percent disability rating for PTSD, effective July 20, 1998. In a March 2005 statement of the case, the RO denied entitlement to an effective date earlier than July 20, 1998, for the grant of service connection for PTSD. The veteran testified before the Board in July 2005. The Board remanded the claim for further development in September 2005. FINDINGS OF FACT 1. The veteran's initial claim for service connection for PTSD was filed at the RO on August 19, 1991. This claim was denied in a December 1991 rating decision. The veteran did not appeal that decision, and it became final. 2. The veteran filed to reopen his previously denied claim for service connection for PTSD on July 20, 1998, more than one year after his separation from service. Service connection subsequently was granted, effective July 20, 1998. 3. There was no informal or formal claim, or written intent to file a claim, for service connection for PTSD dated after the December 1991 denial and prior to the July 20, 1998, claim. 4. The veteran raised a claim of entitlement to revision of the December 1991 denial of service connection based upon clear and unmistakable error (CUE). An April 2007 rating decision from the RO found that there was no CUE in the December 1991 denial of service connection, and the veteran has not appealed this decision. CONCLUSION OF LAW The criteria for an effective date earlier than July 20, 1998, for the award of service connection for PTSD have not been met. 38 U.S.C.A. §§ 1101, 5103, 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Earlier Effective Date The effective date for the grant of service connection based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b) (2007). A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2007). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2007); Norris v. West, 12 Vet. App. 413 (1999). The veteran filed a claim to reopen his previously denied claim for service connection for PTSD on July 20, 1998, more than one year after his separation from active service in December 1968. Where a claim has been filed more than one year after the date of separation from service, the effective date of service connection is the date of the receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b). Significantly, the veteran's original claim for service connection for PTSD was denied in a December 1991 rating decision. He did not appeal that decision. He alleged CUE with respect to that rating, but the RO found no CUE in an April 2007 rating decision, which the veteran has not appealed. The December 1991 decision is therefore final. The first diagnosis of PTSD of record is dated on a VA medical record in January 2003. Thus, the later date is the date the evidence demonstrates that entitlement existed. In this case, however, service connection has been established as of July 20, 1998, the date the claim for service connection was received. The Board can find not basis to assign an earlier effective date. With regard to whether informal or formal claims, or written intent to file an application to reopen his previously denied claim for service connection for PTSD, was filed after the December 1991 denial and prior to the July 20, 1998, application to reopen, the Board finds no evidence of there being such a claim. The first evidence of an intention to reopen his previously denied claim after the December 1991 denial was received in July 1998. After the December 1991 decision denying claim for service connection, it was not until July 20, 1998, that the veteran submitted a statement again alleging entitlement to service connection for PTSD. Thus, the Board finds that in this case, the only date that could serve as a basis for the award of service connection is the date of receipt of the veteran's application to reopen his claim for service connection on July 20, 1998. There is no legal entitlement to an earlier effective date for PTSD. The Board finds that the preponderance of the evidence is against the veteran's claim for an earlier effective date and the claim must be denied. Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2007). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in October 2005; rating decisions in December 1998 and June 2003; statements of the case in March 1999 and March 2005; and supplemental statements of the case in May 1999, July 1999, January 2000, and February 2000. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the April 2007 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained medical examinations in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER An effective date earlier than July 20, 1998, for the award of service connection for post-traumatic stress disorder is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs