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