Citation Nr: 0813778	
Decision Date: 04/25/08    Archive Date: 05/01/08

DOCKET NO.  07-14 911	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, 
Wyoming


THE ISSUE

Entitlement to an effective date prior to July 26, 2005 for 
the grant of service connection for PTSD.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Sorisio, Associate Counsel

INTRODUCTION

The appellant is a veteran who served on active duty from 
January 1980 to July 1992.  This matter is before the Board 
of Veterans' Appeals (Board) on appeal from a June 2006 
rating decision of the Cheyenne, Wyoming Department of 
Veterans Affairs (VA) Regional Office (RO) that granted 
service connection for PTSD, rated 30 percent, effective July 
26, 2005.  In August 2007, a videoconference hearing was held 
before the undersigned.  A transcript of the hearing is of 
record.  At the hearing, the veteran submitted additional 
evidence with a waiver of RO initial consideration of such 
evidence.


FINDING OF FACT

The first communication from the veteran to VA evidencing 
intent to file a claim of service connection for PTSD was 
received on July 26, 2005, more than a year after his 
separation from active duty.


CONCLUSION OF LAW

An effective date earlier than July 26, 2005 is not warranted 
for the award of service connection for PTSD.  38 U.S.C.A. 
§§ 5101, 5107, 5110 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.1, 3.102, 3.151, 3.155, 3.400 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

A.	Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist 
claimants in substantiating a claim for VA benefits.  See 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA 
applies to the instant claim.  
Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative 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 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 his or her 
possession that pertains to the claim.  38 C.F.R. 
§ 3.159(b)(1).  VCAA notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction decision on a claim.  Pelegrini v. Principi, 18 
Vet. App. 112 (2004).

Since the June 2006 rating decision that is on appeal granted 
service connection for PTSD and an effective date for the 
award, statutory notice had served its purpose and its 
application was no longer required.  See Dingess/Hartman v. 
Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. 
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  An April 2007 
statement of the case (SOC) provided notice on the 
"downstream" issue of effective dates of awards and 
readjudicated the matter.  38 U.S.C.A. § 7105; see Mayfield 
v. Nicholson, 20 Vet. App. 537, 542 (2006).  Neither the 
veteran nor his representative has alleged that notice in 
this matter was less than adequate.

All evidence relevant to the veteran's claim has been 
secured.  It is noteworthy that determinations regarding 
effective dates of awards are based, essentially, on what was 
shown by the record at various points in time and application 
of governing law to those findings; generally, further 
development of the evidence is not necessary unless it is 
alleged that evidence constructively of record is 
outstanding.  The veteran has not identified any other 
pertinent evidence that remains outstanding.  Thus, VA's duty 
to assist is also met.  

B.	Legal Criteria, Factual Background, and Analysis

Except as otherwise provided, the effective date of an 
evaluation and award of compensation based on an original 
claim will be the date of receipt of the claim or the date 
entitlement arose, whichever is the later.  38 U.S.C.A. 
§ 5110; 38 C.F.R. § 3.400.

A specific claim in the form prescribed by the Secretary must 
be filed in order for benefits to be paid to any individual 
under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 
C.F.R. § 3.151(a).  A "claim" or "application" is 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).  An informal 
claim must identify the benefit sought.  38 C.F.R. 
§ 3.155(a).  If a formal claim is received within one year of 
an informal claim, it will be considered filed as of the date 
of receipt of the informal claim.  38 C.F.R. § 3.155.  

Once the evidence is assembled, the Board is responsible for 
determining whether the preponderance of the evidence is 
against the claim.  If so, the claim is denied; if the 
evidence is in support of the claim or is in equal balance, 
the claim is allowed.  Gilbert v. Derwinski, 1 Vet. App. 49, 
55 (1990).

It is the policy of VA to administer the law under a broad 
interpretation, consistent with the facts in each case, with 
all reasonable doubt to be resolved in favor of the claimant.  
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Initially, the Board notes that it has reviewed all of the 
evidence in the veteran's claims file, with an emphasis on 
the evidence relevant to this appeal.  Although the Board has 
an obligation to provide reasons and bases supporting its 
decision, there is no need to discuss, in detail, every piece 
of evidence of record.  Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000) (holding that VA must review the 
entire record, but does not have to discuss each piece of 
evidence).  Hence, the Board will summarize the relevant 
evidence where appropriate and the Board's analysis below 
will focus specifically on what the evidence shows, or fails 
to show, as to the claim.

The veteran's formal claim of service connection for PTSD was 
received by the RO on July 26, 2005.  The claims file does 
not contain any communication from the veteran or his 
representative that may reasonably be construed as a formal 
or informal claim of service connection for PTSD received 
prior to that date.  See 38 C.F.R. §§ 3.151, 3.155.  

At the August 2007 hearing and in evidence submitted in 
conjunction with the hearing, the veteran argued that the 
terms of his court ordered probation prevented him from 
seeking treatment at VA and filing a claim for VA benefits 
prior to July 26, 2005.  He believes he is entitled to an 
effective date of February 26, 2001 (when he began seeking 
treatment at the Cheyenne Vet Center with social worker 
C. M.).  

The record reflects that on February 26, 2001, the veteran 
signed a confidentiality agreement with the Vet Center 
indicating that information could be released without his 
consent "[w]hen VA employees have a need to know, including 
for the Purpose of determining VA benefits."  On that date, 
he also signed a VA Form 21-2142, Authorization for Release 
of Information; he testified that he gave the form to C. M. 
who stated he would sign it and submit it to VA and the 
veteran's attorney.

An October 2000 State of Wyoming Department of Corrections 
Probation/Parole Agreement reflects the veteran agreed to 
follow various terms and conditions during his probationary 
period.  The veteran specifically points to two conditions 
that he alleges prevented him from filing a claim for VA 
benefits: 

I will keep my Probation/Parole Agent informed of 
my whereabouts and of all activities participated 
in and submit such reports as required.

I will comply with all instructions in matters 
affecting my supervision, and cooperate by 
promptly and truthfully answering inquiries 
directed to me by a Probation/Parole Agent.

(enumeration omitted).  

The veteran reports that his Vet Center social worker 
diagnosed PTSD in 2001 and that he spoke to his probation 
officer then about seeking treatment at VA.  At that time and 
subsequently, she used the above noted conditions of his 
probation agreement to tell him that his diagnosis through 
C. M. would place him in violation of his court ordered 
probation.  In support of this contention he submitted a 
September 2002 Case Planning Sheet that states that the 
veteran would continue therapy with C. M. and would follow 
all recommendations until successfully discharged.  The 
veteran indicates that this statement was entered because the 
veteran was trying to go to VA for treatment.  

VA records show the veteran received PTSD testing in January 
2002 which revealed no evidence of "any underlying psychotic 
process. . . . clinical depression or anxiety."  The veteran 
indicated that because of the results of this testing, his 
probation officer continued refusing to allow him to go to 
the VA for treatment.  In order for him to seek treatment at 
VA his probation officer told him he needed a referral from 
C. M.; however, C. M. would not give him such a referral 
because of a conflict of interest that C. M. would not 
explain to the veteran.  He indicated he was unaware that he 
could file a claim with VA until February 2006, towards the 
end of his probationary treatment with C. M.  He also did not 
think he could seek treatment at VA until April 2006 when his 
social worker at the Vet Center provided him with a referral; 
at that point, he felt that he would not be violating his 
probation if he went to VA for treatment and filed a claim.  

Regarding the allegation that the veteran might have filed a 
claim with VA sooner, but did not do so because of his 
concern that he would be violating his court ordered 
probation, it is noteworthy that the Board is precluded from 
awarding benefits where they are not allowed by statute.  See 
McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (finding where a 
statute specifically provided an effective date as the date 
of application, an earlier effective date was not allowed 
under equitable estoppel because payment of government 
benefits must be authorized by statute).  Here, there is no 
statutory authority that would allow VA to grant the 
appellant an earlier effective date for the reasons he has 
alleged.  [Notably, a review of the Probation/Parole 
Agreement shows that it does not specifically state that the 
terms of the veteran's probation prevented him from filing a 
VA claim.  It appears, from the evidence of record and the 
veteran's testimony, that the problems he encountered seeking 
VA treatment at resulted from a lack of communication between 
his social worker and his probation officer and possibly some 
bad advice.  See Shields v. Brown, 8 Vet. App. 346, 351 
(1995) (rejecting appellant's argument that she was prevented 
from filing a timely claim because of advice from a local 
veterans' service office); see also Townsend v. Brown, 9 Vet. 
App. 258, 260 (1996) (finding that a Notice of Appeal to the 
Court was untimely and that it was irrelevant that the 
appellant had relied on advice from a local veterans service 
office regarding the time limit for filing a Notice of 
Appeal).  The evidence does not show that a court ordered him 
to not apply for VA benefits.]  

It is also noteworthy that the veteran has indicated he was 
not aware that he could file a claim for VA benefits until 
February 2006 and did not feel comfortable seeking help from 
VA until he got a referral from C. M. in April 2006; however, 
he filed his claim of service connection for PTSD in July 
2005, many months prior to these dates.  His accounts of what 
transpired are inconsistent with contemporaneous recorded 
data.  The Board recognizes that the veteran was seeking 
treatment for PTSD symptoms prior to July 26, 2005; however, 
VA is not required to anticipate any potential claim for a 
particular benefit where no intention to raise it was 
expressed to VA.  See Brannon v. West, 12 Vet. App. 32 
(1998); Talbert v. Brown, 7 Vet. App. 352 (1995).  

While the veteran may have signed VA Form 21-2142 on February 
26, 2001, such form was not submitted to VA until March 2006 
(in conjunction with his July 26, 2005 claim of service 
connection).  In the absence of a formal or informal claim of 
service connection for PTSD having been filed prior to July 
26, 2005, the veteran is not entitled to an effective date of 
award of such benefit prior to that date.

The preponderance of the evidence is against the veteran's 
claim for an earlier effective date for the award of service 
connection for PTSD.  In such a situation, the benefit of the 
doubt doctrine does not apply, and the claim must be denied.






ORDER

An effective date prior to July 26, 2005 for the award of 
service connection for PTSD is denied.



____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

















 Department of Veterans Affairs