Citation Nr: 0811503 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 05-38 076 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUE Entitlement to an effective date earlier than May 9, 1995, for the award of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Schechner, Associate Counsel INTRODUCTION The veteran served on active duty from May 1971 to May 1975, and from August 1975 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 determination by the Department of Veterans Affairs Regional Office in Los Angeles, California. FINDINGS OF FACT 1. Prior to May 9, 1995, the veteran had not submitted a formal or informal claim of service connection for PTSD. 2. In a January 1996 rating action, service connection was denied for PTSD by the RO. 3. On May 13, 1996, the veteran requested to open a claim for PTSD. 4. The RO's October 1996 rating decision, which granted service connection for PTSD, and assigned an initial 0 percent rating effective May 13, 1996, is final. 5. The RO's May 1998 rating decision, which awarded an earlier effective date of May 9, 1995 for service-connected PTSD, is final. 6. The RO's November 1999 rating decision, which granted a rating increase for PTSD to 100 percent effective May 9, 1995, is final. CONCLUSION OF LAW There is no legal entitlement to an effective date earlier than May 9, 1995, for the award of service connection for PTSD. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.1(p), 3.151, 3.155, 3.157, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. When an application for disability compensation is received within one year of the date of the veteran's discharge or release from service, the effective date of such award shall be the day following the veteran's release. 38 U.S.C.A. § 5110(b)(1). The term "application," while not defined in the statute, is broadly construed by regulation to include "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). Where a formal claim has already been allowed, certain submissions will be accepted as an informal claim such as a report of examination or hospitalization by the VA. 38 C.F.R. §§ 3.157(b)(1)-(b)(3). Furthermore, any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim provided that such informal claim identify the benefit being sought. 38 C.F.R. § 3.155(a). See Brannon v. West, 12 Vet. App. 32, 34 (1998). In determining the effective date of award, the Board is required to look to all communications in the file which may be construed as a formal or an informal claim and, then, to all other evidence in the record to determine the "earliest date of which," within the year prior to the claim, the increase in disability was ascertainable. Quarles v. Derwinski, 3. Vet. App. 129, 134 (1992). Appellate review of a rating decision is initiated by a notice of disagreement and completed substantive appeal after a statement of the case has been furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). In Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006), the United States Court of Appeals for Veterans Claims (Court) held that when a rating decision is final, only a request for a revision premised on clear and unmistakable error (CUE) could result in the assignment of earlier effective date. A freestanding claim for an earlier effective date, once the appeal becomes final, attempts to vitiate the rule of finality. The veteran contends that he should be granted an earlier effective date for his service-connected PTSD, specifically that the effective date should immediately follow his separation from service. The veteran filed a formal claim for service connection for PTSD on May 9, 1995. The original claim was denied for lack of a valid diagnosis. A RO rating decision in October 1996 awarded the veteran service connection for PTSD at an uncompensable rating. The 0 percent rating was effective May 13, 1996, the date of receipt of a request by the veteran to reopen the claim for PTSD. The veteran was notified of this decision, and his appellate rights, in an October 1996 letter. A May 1998 RO rating decision granted an effective date of May 9, 1995, finding that the claim had been continuously prosecuted by the veteran since the original application for benefits. The uncompensable rating for PTSD was continued. The veteran was notified of this decision, and his appellate rights, in a June 1998 letter. Following additional development, a November 1999 rating decision by the RO increased the evaluation for PTSD to 100 percent, effective May 9, 1995. A December 1999 RO letter notified the veteran of the November 1999 rating decision and his appellate rights, but the veteran did not initiate an appeal. Therefore, that RO rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. As held in Rudd, the Board is statutorily barred from revisiting the RO's factual or legal findings in the October 1996, May 1998, or November 1999 rating decisions by operation of 38 U.S.C.A. § 5110(a). Rudd, 20 Vet. App. at 300. It is important for the veteran to understand that the RO's November 1999 rating decision pertaining to the evaluation and effective date of award assigned is a final decision, and any attempt to collaterally attack that decision must be addressed in a CUE motion. Rudd, supra. In any event, the veteran made no claims or allegations of PTSD, either formal or informal prior to May 9, 1995. An earlier effective date for service-connected PTSD is therefore denied as a matter of law. Simply stated, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). There is no provision in the law for awarding an earlier effective date based on the veteran's assertion that the disability existed before he filed the claim. The U.S. Court of Appeals for Veterans Claims (Court) has held that where the law not the evidence is dispositive, the Board should deny an appeal because of an absence of a legal merit or the lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The veteran has failed to allege facts which meet the criteria in the law or regulations, and his claim must be denied. Duty to Notify and to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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 & Supp. 2007); 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, VCAA notice is not required because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law. See Smith v. Gober, 14 Vet. App. 227, 230 (2000) (claim that a Federal statute provides for payment of interest on past-due benefits), aff'd, 281 F.3d 1384 (Fed. Cir. 2002), cert. denied, 537 U.S. 821 (2002). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran submitted letters summarizing private treatment by Dr. K.H. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An effective date earlier than May 9, 1995, for the award of service connection for PTSD is denied. ____________________________________________ JOHN J. CROWLEY, Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs