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