Citation Nr: 0811494	
Decision Date: 04/08/08    Archive Date: 04/23/08

DOCKET NO.  05-06 525	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, 
Washington


THE ISSUE

Entitlement to an effective date earlier than June 10, 2003, 
for service connection for post traumatic stress disorder 
(PTSD) for accrued benefits purposes.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


WITNESSES AT HEARING ON APPEAL

Appellant and her son


ATTORNEY FOR THE BOARD

Dan Brook, Associate Counsel


INTRODUCTION

The appellant is the surviving spouse of the veteran who 
served on active duty from June 1951 to October 1958 and from 
October 1962 to December 1977.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from an April 2004 rating decision of the 
Seattle, Washington Regional Office (RO) of the Department of 
Veterans Affairs (VA).  A Travel Board hearing was held in 
February 2008; a transcript of the hearing is of record.  


FINDINGS OF FACT

1.  The RO received the veteran's claim for service 
connection for PTSD on June 10, 2003.

2.  The veteran died in November 2003.

3.  The appellant subsequently submitted a claim for accrued 
benefits in December 2003 and in the January 2004 rating 
decision the RO granted service connection for PTSD for 
accrued benefits purposes and assigned an effective date of 
June 10, 2003, the date the veteran's PTSD claim was 
received.

4.  There is no indication in the record that the veteran 
filed, or that the RO received, a formal or informal claim 
for service connection for PTSD prior to the RO's receipt of 
the veteran's PTSD claim on June 10, 2003.   


CONCLUSION OF LAW

The criteria for entitlement to an earlier effective date for 
service connection for PTSD for accrued benefits purposes 
have not been met.  38 U.S.C.A. § 5110, 5121(a), 7105 (West 
2002); 38 C.F.R. §§ 3.1(p), 3.155(a), 3.400, 3.1000(a) 
(2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VCAA

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 
3.159 and 3.326(a) (2007).  

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must 
inform the claimant of any information and evidence not of 
record (1) that is necessary to substantiate the claim; (2) 
that VA will seek to provide; (3) that the claimant is 
expected to provide; and (4) must ask the claimant to provide 
any evidence in her or his possession that pertains to the 
claim in accordance with 38 C.F.R. § 3.159(b)(1).  VCAA 
notice should be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on 
a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The veteran and appellant were advised of VA's duties to 
notify and assist in the development of his claims.  A July 
2003 letter from the RO explained what the evidence needed to 
show to substantiate the veteran's initial claim for service 
connection for PTSD.  It also explained that VA was 
responsible for obtaining relevant records from any federal 
agency, and that VA would make reasonable efforts to obtain 
records not held by a federal agency, but that it was the 
veteran's responsibility to make sure that VA received all 
requested records not in the possession of a federal 
department or agency.  Although this letter did not advise 
the veteran verbatim to submit everything he had pertinent to 
his claim, it explained the type of evidence necessary to 
substantiate his claim and asked him to submit such evidence.  
This was equivalent to advising him to submit any evidence in 
his possession pertaining to his claim.

The Board notes that the appellant did not receive a separate 
notice letter specifically advising her of the evidence 
necessary to establish her claim for an earlier effective 
dater for service connection for PTSD for accrued benefits 
purposes.  The Board finds, however, that under governing 
case law, such notice is not required.  In Dingess v. 
Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals 
for Veterans Claims held that in cases where service 
connection has been granted and an initial disability rating 
and effective date have been assigned (as in this case), the 
typical service-connection claim has been more than 
substantiated, it has been proven, thereby rendering section 
5103(a) notice no longer required because the purpose that 
the notice is intended to serve has been fulfilled.  Id. at 
490-91.  Thus, under Dingess, the notice the veteran was 
provided before service connection for PTSD for accrued 
purposes was granted (and the effective date of June 10, 2003 
assigned) was legally sufficient and satisfied VA's notice 
requirements in relation to appellant's subsequent claim for 
an earlier effective date.  The Board also notes that the 
appellant did receive a more general notice letter explaining 
how VA does assign an effective date in January 2008.  
Further, the determination in this case regarding whether an 
earlier effective date for service connection for PTSD for 
accrued benefits purposes is warranted is based on whether 
the claims file contains a communication from the veteran 
prior to June 10, 2003 that could constitute an earlier 
formal or informal claim for service connection for PTSD.  
Thus, any lack of specific notice to the appellant regarding 
the evidence needed to substantiate her claim for the earlier 
effective date was not prejudicial as it did not affect VA's 
determination regarding the presence or absence of such a 
communication. 

Although complete VCAA notice was not given prior to the 
rating on appeal, the appellant had ample opportunity to 
respond to the notice letters and to supplement the record 
after notice was given.  She is not prejudiced by any 
technical notice deficiency that may have occurred along the 
way, and no further notice is required.  See Conway v. 
Principi, 353 F.3d 1369 (Fed. Cir. 2004).

Regarding VA's duty to assist, the RO has obtained available 
evidence pertaining to the veteran's communications with VA 
and his past history of mental disability including PTSD.  
The appellant has not identified any additional evidence 
pertinent to this claim.  VA's assistance obligations are 
met.  The veteran is not prejudiced by the Board's proceeding 
with appellate review. 

II.  Factual Background

On June 6, 2003 the veteran filed an informal claim for 
service connection for PTSD, which was received by the RO on 
June 10, 2003.  The veteran subsequently filed a formal claim 
for service connection for PTSD, which was received by the RO 
on June 11, 2003.  

On August 2003 VA psychological evaluation the diagnoses were 
depression, not otherwise specified, secondary to residuals 
from liver cancer and liver transplant and PTSD, chronic, 
moderately severe.  The examiner noted that the veteran 
experienced particularly intense stressor events in May 1953, 
while serving in the Seventh Fighter Bomber Unit as an F-84 
bomber pilot.  During that time frame three pilots and 
friends he served with were killed in action.  The examiner 
found that the veteran's PTSD was related to these and other 
subsequent service related stressors. 

A September 2003 private mental health assessment showed that 
the veteran had PTSD related to traumatic events in the 
military.  The examining social worker indicated that the 
veteran had suffered from PTSD for more than 50 years.

The veteran's certificate of death shows that he died in 
November 2003 from carcinoma of the liver and biliary 
cirrhosis.  

In December 2003 the appellant filed a claim for accrued 
benefits on the basis that the veteran's claim for PTSD was 
pending at the time of his death.  

In the January 2004 rating decision, the RO granted service 
connection for PTSD for accrued benefits purposes and 
assigned a 50 percent rating and an effective date of June 
10, 2003.  

In her April 2004 notice of disagreement the appellant 
indicated that the January 2004 decision was incorrect in 
regard to the effective date of the award.  She believed that 
the effective date of the award should have been May 1953 as 
this was "the date the VA used to establish service 
connection for PTSD."  The veteran did not acquire PTSD when 
he filed his PTSD claim on June 10, 2003 and the effective 
date of his award should have dated back to when he was 
deemed to have acquired PTSD, May 1953.   

At her February 2008 Board hearing the appellant testified 
that although the veteran did not admit that he had mental 
difficulty associated with his military service prior to 9/11 
there were signs, such as an inability to form close 
friendships and inability to comfort the appellant after she 
lost her parents that pointed to mental difficulty dating 
back to the 50s.  The appellant then indicated that she felt 
that the veteran's PTSD actually began after the veteran lost 
his three friends and fellow pilots in May 1953 and that 
consequently, the effective date for the grant of service 
connection for PTSD should date back to May 1953.  The 
appellant also noted that she did not believe that there were 
any other medical records documenting past treatment of the 
veteran that were not already of record as the veteran was 
generally not inclined to seek medical attention.  

III.  Law and Regulations

Governing law and regulations provide that, upon the death of 
a veteran, periodic monetary benefits to which he was 
entitled to, on the basis of evidence in the file at the date 
of death (accrued benefits) and due and unpaid for a period 
of not more than two years prior to death, may be paid to 
certain parties.  38 U.S.C.A. § 5121(a) (West 2002); 38 
C.F.R. § 3.1000(a) (2003).  (A revision to the law regarding 
accrued benefits claims, enacted by Congress and signed by 
the President as the Veterans Benefits Act of 2003, Pub. L. 
No. 108-183, § 104, on December 16, 2003, amends 38 U.S.C.A. 
§ 5121(a) by repealing the two-year limit on accrued benefits 
so that a veteran's survivor may receive the full amount of 
award for accrued benefits; however, this revision relates 
only to cases where the veteran's death occurred on or after 
the date of enactment, December 16, 2003.  It does not affect 
cases involving deaths of veterans prior to that time, as 
here).  Although the appellants accrued benefits claim 
granted by the RO in January 2004 after the veteran's death 
is separate from the veteran's claim for service connection 
for PTSD filed prior to death, it is derivative of the 
veteran's claim; thus, an appellant takes the veteran's claim 
as it stood on the date of death, but within the limits 
established by law.  See Zevalkink v. Brown, 102 F.3d 1236, 
1242 (Fed. Cir. 1996).

The statutory guidelines for the determination of an 
effective date of an award of disability compensation are set 
forth in 38 U.S.C.A. § 5110.  Except as otherwise provided, 
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 the later [emphasis added].  38 C.F.R. §  3.400.

A specific claim in the form prescribed by the Secretary of 
Veterans Affairs must be filed in order for benefits to be 
paid to any individual under the laws administered by VA.  38 
C.F.R. § 3.151(a).  The term "claim" or "application" 
means a formal or informal communication in writing 
requesting a determination of entitlement or evidencing a 
belief of entitlement, to a benefit.  38 C.F.R. § 3.1(p).  
"Date of receipt" generally means the date on which a 
claim, information or evidence was received by VA.  38 C.F.R. 
§ 3.1(r).

The applicable statutory and regulatory provisions require 
that VA look to all communications from the appellant, which 
may be interpreted as applications or claims - formal and 
informal - for benefits.  In particular, VA is required to 
identify and act on informal claims for benefits.  38 C.F.R. 
§§ 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App. 
196 (1992).  An informal claim must identify the benefit 
sought.  38 C.F.R. § 3.155(a).  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 from the date it was sent to the 
claimant, it will be considered filed as of the date of 
receipt of the formal claim.  Id.

When all of the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the appellant prevailing in either 
event, or whether a fair preponderance of the evidence is 
against the claim, in which case the claim is denied.  
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

IV.  Analysis

As noted above, the effective date for the granting of a 
claim for service connected compensation is the date of 
receipt of the claim or the date entitlement arose, whichever 
is the later.    38 C.F.R. §  3.400.  Thus, in the instant 
case the RO assigned June 10, 2003 as the effective date for 
the grant of service connection for PTSD for accrued benefits 
purposes as that is when the veteran's claim for PTSD was 
received by the RO.  Consequently, in order for the appellant 
to receive an earlier effective date, it would need to be 
shown that the veteran had made either a formal or informal 
claim for service connection for PTSD prior to June 2003 (The 
Board also notes that even if were shown that an earlier 
claim was made, in no instance could the appellant receive 
accrued benefits in an amount greater than the benefits due 
and unpaid for two years prior to the veteran's death.  38 
U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000(a) 
(2003).)  Unfortunately, there is no evidence of record 
showing that the veteran did make any communications prior to 
June 2003 either requesting a determination of entitlement to 
service connection for PTSD or other psychiatric disorder or 
evidencing a belief of entitlement to this benefit.  
Consequently, the Board has no basis for granting an earlier 
effective date for service connection for this disability for 
accrued benefits purposes.

The Board recognizes that the veteran dedicated years of his 
life to high level military service and that appellant put 
forth highly credible testimony that the veteran's PTSD 
actually dated back much further than June 2003.  The Board, 
however, is bound by controlling regulations.  Consequently, 
in the absence of any evidence of a formal or informal claim 
made prior to June 10, 2003, the instant claim for service 
connection for PTSD for accrued benefits purposes must be 
denied.  


ORDER

An effective dater earlier than June 10, 2003, for 
entitlement to service connection for PTSD for accrued 
benefits purposes is denied.   



____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs