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