Citation Nr: 0812124 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-18 748 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than April 22, 2005, for entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Marine Corps League ATTORNEY FOR THE BOARD J. Alsup, Associate Counsel INTRODUCTION The veteran served on active duty from September 1984 to June 1991. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit which granted the veteran's claim for service connection for PTSD, currently evaluated as 70 percent disabling effective April 22, 2005, the date the RO received the veteran's claim. The veteran disagreed with the effective date and timely appealed. The veteran has not expressed disagreement as to the disability rating assigned for his service-connected PTSD disability, but has only disagreed with the assigned effective date. FINDINGS OF FACT The veteran's request to reopen his claim for disabilities was received by the RO on April 22, 2005. CONCLUSION OF LAW The correct effective date of the grant of service connection for PTSD is April 22, 2005. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he is entitled to an earlier effective date because he submitted an informal claim pursuant to 38 C.F.R. § 3.155(a) on September 30, 2004. The Board will address some preliminary matters and then render a decision. Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it 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. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board notes that the facts in this case are largely not in dispute and are a matter of record, and the veteran has not indicated that he can add anything to his contentions already of record. It appears that no amount of additional evidentiary development would thus avail the veteran. Further, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. As noted above, the only issues before the Board address earlier effective dates, or Dingess element (5). The Board observes that the veteran was notified of how VA determines an effective date in a March 2006 notice letter. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2007). The record reveals that the veteran waived his right to a hearing before a local hearing officer and did not seek a hearing before a Veterans Law Judge. See veteran's VA Form 9 received on June 7, 2006. The Board will therefore proceed to a decision on the merits. Pertinent law and regulations Effective dates Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2007). Claims Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a) (2007). A claim is defined as "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 intent to apply for one or more benefits under the laws administered by the VA may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2007). Analysis The evidence of record establishes that the RO received veteran's claim for service-connection for PTSD on April 22, 2005. This is the date as of which service connection has been established for PTSD. As was discussed in the law and regulations sections above, the effective date of service connection is ordinarily the date of filing of the claim. The veteran has challenged the effective date assigned for service connection, contending that he submitted an informal claim under 38 C.F.R. § 3.155(a) on September 30, 2004. In a statement submitted with the veteran's VA Form 9 substantive appeal, the veteran's representative seems to acquiesce that the September 30 submission was an "incomplete claim," because, as noted in the Statement of the Case (SOC), it did not identify the benefit sought. As noted in the law and regulations section above, § 3.155(a) states that "[S]uch informal claim must identify the benefit sought." The representative next contends that the RO failed in its duty to assist because it did not notify the veteran or the veteran's representative of the information needed to complete the application. The record indicates that the veteran submitted a formal claim on April 22, 2005, and the RO informed the veteran of his rights and duties and VA's duties to assist him in a letter dated May 2005. In essence, the veteran's contention is that VA was obligated to inform him that his informal submission was incomplete immediately after they received it. The Board has reviewed the rules of procedure cited by the veteran's representative, but can not find where any require VA to inform a claimant within a specified time that his claim is incomplete. Indeed, the very regulation cited by the veteran in the September 30, 2004, document and cited by the representative states in clear language that the veteran's informal claim must identify the benefit sought. Thus, the regulation the veteran cites in his statement provided the very notice that the veteran now contends VA should have provided him. The Board finds that the September 30, 2004, document does not meet the criteria of an informal claim within the meaning of 38 C.F.R. § 3.155(a) because it did not identify the benefit sought by the veteran. Accordingly, based upon a complete review of the evidence on file, and for reasons and bases expressed above, the Board finds that the currently assigned effective date of April 22, 2005, is the earliest effective date assignable for service-connected PTSD disability. Because the law, and not the facts, is dispositive of the issue, the veteran has failed to state a claim upon which relief may be granted, and, as a matter of law, the claim must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). ORDER Entitlement to an effective date earlier than April 22, 2005, for entitlement to service connection for PTSD is denied. ____________________________________________ FRANK J. FLOWERS VETERANS LAW JUDGE, BOARD OF VETERANS' APPEALS Department of Veterans Affairs