Citation Nr: 0813179	
Decision Date: 04/22/08    Archive Date: 05/01/08

DOCKET NO.  05-17 660A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, 
Pennsylvania


THE ISSUE

Entitlement to an effective date earlier than December 16, 
1993, for the grant of service connection for post-traumatic 
stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E.B. Joyner, Associate Counsel




INTRODUCTION

The veteran served on active duty from March 1969 to January 
1972.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 2003 rating decision by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Pittsburg, Pennsylvania, which granted service connection for 
PTSD and assigned a 30 percent rating, effective December 16, 
1993.  The veteran filed an appeal with respect to the 30 
percent rating as well as the effective date of the award.  
In a May 2005 rating decision, the RO awarded an increased 
rating of 100 percent, effective September 17, 2004, but 
denied an earlier effective date for the original grant of 
service connection.  The veteran continued his appeal for an 
earlier effective date of the original grant of service 
connection.

In April 2008, the veteran submitted additional evidence with 
a waiver of initial RO consideration.  See 38 C.F.R. § 
20.1304 (2007).


FINDINGS OF FACT

1.  By rating decision dated in September 1988, the RO denied 
the service connection for PTSD.  The veteran was notified of 
this determination by an October 1988 letter, but he did not 
perfect an appeal.

2.  The veteran submitted a claim for service connection for 
PTSD on December 16, 1993.

3.  In a January 2000 decision, the Board reopened and 
remanded the veteran's claim for service connection for PTSD; 
the claim was reopened on the basis of new and material 
evidence, other than service department records.  

4.  In a May 2005 rating decision, the RO granted service 
connection for PTSD, effective December 16, 1993.

5.  The veteran did not express intent to pursue a claim of 
service connection for PTSD in the interim between the final 
rating action in September 1988 and his application to reopen 
the claim of service connection for PTSD disability that was 
received at the RO on December 16, 1993.  


CONCLUSION OF LAW

Entitlement to an effective date earlier than December 16, 
1993, for the grant of service connection for PTSD is not 
established.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 
3.150, 3.151, 3.155, 3.400 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), codified 
in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), 
and the pertinent implementing regulation, codified at 38 
C.F.R. § 3.159 (2007), provide that VA will assist a claimant 
in obtaining evidence necessary to substantiate a claim but 
is not required to provide assistance to a claimant if there 
is no reasonable possibility that such assistance would aid 
in substantiating the claim.   They also require VA to notify 
the claimant and the claimant's representative, if any, of 
any information, and any medical or lay evidence, not 
previously provided to the Secretary that is necessary to 
substantiate the claim.   As part of the notice, VA is to 
specifically inform the claimant and the claimant's 
representative, if any, of which portion, if any, of the 
evidence is to be provided by the claimant and which part, if 
any, VA will attempt to obtain on behalf of the claimant.   
In addition, VA must also request that the claimant provide 
any evidence in the claimant's possession that pertains to 
the claim.  

As explained below, the pertinent facts in this case are not 
in dispute and the law is dispositive.  Consequently, there 
is no additional evidence that could be obtained to 
substantiate the claim, and no further action is required to 
comply with the VCAA or the implementing regulation.  See 
Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 
5-2004 (June 23, 2004).

Nonetheless, a December 2005 letter explained the evidence 
needed to substantiate the claim and VA's duty to assist, and 
the evidence the veteran was expected to provide.  In 
addition, the letter stated: "If you have any evidence in 
your possession that pertains to your claim, please send it 
to us."  


Analysis

The effective date of an award of compensation on a claim to 
reopen after a final disallowance of the claim will be the 
date of receipt of the claim or the date entitlement arose, 
whichever is the later, if the claim was reopened on the 
basis of new and material evidence other than service 
department records.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. 

Any communication or action from a claimant, which indicates 
intent to apply for one or more benefits under the laws 
administered by VA, may be considered an informal claim.  
Such informal claim must identify the benefit sought.  38 
C.F.R. § 3.155.

The record shows that the veteran's initial claim of 
entitlement to service connection for PTSD was denied in a 
September 1988 rating decision on the basis that the 
veteran's did not suffer from PTSD.  The veteran was provided 
notice of the decision and his appellate rights in October 
1988.  He did not file an appeal.  Pursuant to 38 U.S.C.A. § 
5108 (West 2002), a finally disallowed claim, such as the 
veteran's, may be reopened when new and material evidence is 
presented or secured with respect to that claim.

The veteran did not submit a claim to reopen his previously 
disallowed claim of entitlement to service connection PTSD 
until December 16, 1993.  In a January 2000 decision, the 
Board reopened the claim on the basis of new and material 
evidence other than service department records.  The RO 
eventually granted service connection for PTSD and assigned 
an effective date of December 16, 1993, the date of receipt 
of the claim to reopen, which was in accordance with 38 
U.S.C.A. § 5110; 38 C.F.R. § 3.400 (the effective date of an 
award of compensation on a claim to reopen after a final 
disallowance of the claim will be the date of receipt of the 
claim unless the new and material evidence includes service 
department records).  

The remaining question is whether the veteran indicated an 
intent to apply for service connection for PTSD in the 
interim between the final disallowance of the claim in 
September 1988 and the date of receipt of the claim to reopen 
in December 1993.  As the record contains no such 
communication or action from the veteran during the interim 
period, there is no factual or legal basis to assign an 
effective date earlier than December 16, 1993.  The Board has 
considered whether any of the earlier medical records, 
specifically a March 1990 medical record containing a 
diagnosis of PTSD, would qualify as a claim to reopen.  
Unfortunately, none of the medical records qualifies.  In 
reaching this decision, the Board notes that the effective 
date of service connection cannot be based on the date of the 
earliest medical evidence showing that the veteran had PTSD 
related to service.  While 38 C.F.R. § 3.157(b) does contain 
provisions in which VA treatment records can constitute an 
informal claim in certain cases, application of this 
regulation is not warranted in this case, as such regulation 
applies only to a distinct group of claims where service 
connection has already been established for the condition at 
issue.  See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. 
Cir. 2006); see also Lalonde v. West, 12 Vet. App. 377, 382 
(1999) (because appellant had not been granted service 
connection for his claimed condition, the mere receipt of 
medical records could not be construed as an informal claim 
for that disability).

As the veteran did not attempt to reopen his claim for 
service connection for PTSD prior to December 16, 1993, he 
has already been given the earliest possible effective date 
for the award of service connection for his disability.  
Thus, there is no legal basis for an effective date earlier 
than December 16, 1993.  Accordingly, the claim must be 
denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 
426, 430 (1994).


ORDER

Entitlement to an effective date earlier than December 16, 
1993, for the grant of service connection for PTSD is denied.



____________________________________________
JOHN Z. JONES
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs