Citation Nr: 0813422 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 04-37 163 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date earlier than November 21, 2002, for the grant of entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Hallie E. Brokowsky INTRODUCTION The veteran had active service from June 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio, which granted the veteran's claim of entitlement to service connection for PTSD, and assigned a 30 percent disability evaluation, effective November 21, 2002. The veteran indicated that he was dissatisfied with the disability evaluation assigned, as well as the effective date assigned for the grant of service connection. The case was remanded by the Board for additional development in July 2006. Subsequently, in a November 2007 rating decision, the RO granted the veteran an increased, 100 percent disability evaluation for his PTSD, effective November 21, 2002. The veteran has indicated that he is satisfied with this increased disability evaluation. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (even if a rating is increased during the pendency of an appeal, a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). The remaining issue on appeal, entitlement to an effective date prior to November 21, 2002, for the grant of entitlement to service connection for PTSD, has been returned to the Board for appellate consideration. FINDING OF FACT The veteran's claim of entitlement to service connection for PTSD was received by the RO on November 21, 2002. CONCLUSION OF LAW The requirements are not met for an effective date prior to November 21, 2002 for the grant of service connection for PTSD. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.105, 3.155, 3.159, 3.400 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 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 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Notice 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 & Supp. 2007); 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); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required 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. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the veteran is appealing the effective date assignment as to his PTSD. As the June 2004 rating decision granted the veteran's claim of entitlement to service connection, such claim is now substantiated. His filing of a notice of disagreement as to the November 2002 effective date determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). Rather, the veteran's appeal as to the effective date assignment here triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103. As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. This has been accomplished here, as will be discussed below. The statement of the case (SOC), under the heading "Pertinent Laws; Regulations; Rating Schedule Provisions," set forth the relevant law and regulations for assignment of the effective date. In addition, a September 2006 letter explained the basis for determining an effective date upon the grant of service connection, in compliance with Dingess/Hartman. Therefore, the Board finds that the appellant has been informed of what was necessary to achieve an earlier effective date for the grant of service-connection for the disability at issue. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, i.e., the RO, the Board must consider whether the veteran has been prejudiced thereby). See also Soyini v. Derwinski, 1 Vet. App. 540 (1991) (a remand is inappropriate where there is no possibility of any benefit flowing to the veteran). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. The content of the notice provided to the appellant fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. Duty to Assist With regard to the duty to assist, the claims file contains the veteran's service medical records and reports of VA and private post-service treatment and examination. Additionally, the claims file contains the veteran's own statements in support of his claim. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also perused the medical records for references to additional treatment reports not of record for the time period at issue, but has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Legal Criteria The statutory and regulatory guidelines for determining the effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2007). Except as otherwise provided, the effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The effective date of an award of service connection will be the day following the date of separation from service - if the veteran filed a claim within one year after service. Otherwise, the effective date will be the date of receipt of his claim. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). The applicable statutory and regulatory provisions require that VA look to all communications from the veteran that may be interpreted as applications or claims, both formal and informal, for benefits. VA is required to identify and act on informal claims for benefits. See 38 U.S.C.A. § 5102; 38 C.F.R. § 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). An informal claim must identify the benefit sought. See 38 C.F.R. § 3.155(a). In order for benefits to be paid under the laws administered by the VA, a specific claim in the form prescribed by the Secretary must be filed. See 38 U.S.C.A. § 5101; 38 C.F.R. § 3.151(a). All claims for benefits filed with the VA, formal or informal, must be in writing. See Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). Analysis As already indicated, the veteran's service in the military ended in April 1968. Unfortunately, he did not file a claim for service connection for PTSD within one year of his discharge from service (i.e., by April 1969). Instead, it was not until many decades later, on November 21, 2002, that he filed a claim. Service connection was subsequently granted in a June 2004 rating decision, effective November 21, 2002, the date of receipt of his claim. The Board finds that the effective date of November 21, 2002 for the grant of service connection for PTSD is appropriate. There is no indication the veteran specifically acted to file his claim for service connection for PTSD prior to November 21, 2002, which is the date the RO first received a written claim for service connection for PTSD. In fact, he has not alleged that he made any attempts to file a claim prior to that date. And the file is entirely negative for a written claim, formal or informal, until the claim was received by the RO on November 21, 2002. As the effective date can be no earlier than the date of receipt of his claim, November 21, 2002, is the correct effective date in this particular instance. See 38 C.F.R. § 3.400(b). Moreover, the Board recognizes the veteran's statements that his PTSD has existed since his service, but points out there is no provision for payment of benefits from an earlier date based on a disorder's existence from a date previous to the receipt of the claim, unless the claim is filed within one year of separation from service. See 38 C.F.R. §§ 3.400(b)(2). So, for these reasons, the Board finds that the preponderance of the evidence is against the veteran's claim for an earlier effective date for service connection of his PTSD. Therefore, his claim must be denied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Entitlement to an effective date prior to November 21, 2002 for the grant of service connection for PTSD is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs