Citation Nr: 0815142 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 03-03 467 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date earlier than December 9, 1999, for an award of service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.G. Reinhart, Associate Counsel INTRODUCTION The veteran had active service from January 1983 to December 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2001 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, in which the RO granted the veteran's claim of service connection for PTSD and assigned a 10 percent rating effective December 9, 1999. The veteran disagreed with this decision in December 2001, seeking an effective date earlier than December 9, 1999, for an award of service connection for PTSD. She perfected a timely appeal in January 2003. In January 2004, the Board remanded the veteran's claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. In August 2007, the veteran requested a videoconference Board hearing which was held in February 2008 before the undersigned Acting Veterans Law Judge. Also in February 2008, the veteran submitted additional evidence which had not been considered by the RO in the first instance along with a waiver of RO jurisdiction over this evidence. See 38 C.F.R. § 20.1304(c) (2007). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. A VA form 21-526, "Veteran's Application for Compensation or Pension", dated December 6, 1999, and date stamped as received by the RO on December 9, 1999, is the first claim of record by the veteran for entitlement to service connection for PTSD. CONCLUSION OF LAW The criteria for an effective date earlier than December 9, 1999 for an award of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5101(a), 5110, 5111 (West 2002); 38 C.F.R. §§ 3.1, 3.4(b)(1), 3.31, 3.105(a), 3.151(a), 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. See 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). 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims ("Veterans Court") held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The issue on appeal is a "downstream" element of the RO's award of service connection for PTSD in the currently appealed rating decision issued in November 2001. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Here, in a March 2004 letter, VA notified the veteran of the information and evidence needed to substantiate and complete her claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for her. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter informed the veteran that the evidence must show that a formal or informal application for an increased rating for PTSD was received by VA between June 4, 1992 (the date of a disallowance of an earlier claim) and December 9, 1999. The veteran was advised of VA's duty to assist her in obtaining evidence and was asked to submit evidence and/or information in support of her claim to the RO. In addition, the veteran was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has substantially satisfied the requirement that the veteran be advised to submit any additional information in support of her claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Although the March 2004 letter was not provided prior to the initial adjudication of the veteran's service connection claim for PTSD in November 2001, the Board observes that the November 2001 rating decision was fully favorable to the veteran on the issue of service connection for PTSD. The veteran's earlier effective date claim was readjudicated in Supplemental Statements of the Case issued in July 2004, July 2005, and in September 2005, after the March 2004 VCAA notice was provided. As will be explained below in further detail, because the earlier effective date claim is being denied in this decision, no new disability rating or effective date for award of benefits will be assigned. Accordingly, the Board concludes that any timing error in providing VCAA notice to the veteran was not prejudicial. The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The Board observes that the RO initially construed the veteran's claim as an application to reopen a previously denied service connection claim for a nervous disorder. Recently, the United States Court of Appeals of the Federal Circuit ("Federal Circuit") clarified that a new claim is distinguished from a previously denied claim by the diagnoses assigned to the disability rather than the symptoms experienced by the claimant. See Boggs v. Peake, No. 2007- 7137 (Fed. Cir. Mar. 26, 2008). Given the contents of the March 2004 VCAA notice letter, however, the Board finds that the veteran was not prejudiced even though this letter referred to PTSD and not to the veteran's earlier service connection claim for a nervous disorder. Additional notice of the five elements of a service- connection claim was provided in August 2007, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). To the extent that Dingess requires more extensive notice as to potential downstream issues such as disability rating and effective date, the Board finds no prejudice to the veteran in proceeding with the present decision and any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Dingess, the Veterans Court held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, 19 Vet. App. at 490-91. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. In this case, the Board finds that any notice errors in timing or content did not affect the essential fairness of the adjudication. Any defect was cured by actual knowledge on the part of the veteran as shown by her February 2008 videoconference Board hearing testimony. During that hearing, the undersigned Acting Veterans Law Judge informed the veteran that an earlier effective date could be assigned if the evidence showed that a prior claim had been filed. See Hearing transcript, at p. 11. The veteran also acknowledged in her testimony that the claim denied in January 1985 was not a claim for PTSD but instead was a claim for a nervous disorder. Id. When asked if she had filed any claim that may entitle her to an earlier effective date, the veteran testified that a previous claim had been denied approximately one month after she filed. Id. This is consistent with the facts of record surrounding a claim denied by the RO in June 1992. Thus, the veteran had actual knowledge of what evidence was needed to establish an earlier effective date for an award of service connection for PTSD. And, after reviewing the contents of the August 2007 letter issued to the veteran and her service representative, the Board also finds that a reasonable person would know what was required to obtain an earlier effective date. VA also has complied with the VCAA's duty to assist by aiding the veteran in obtaining evidence and affording her the opportunity to give testimony before the RO and the Board. It appears that all known and available records relevant to the issue here on appeal have been obtained and are associated with the veteran's claims file; the veteran does not contend otherwise. Thus, the Board finds that VA has done everything reasonably possible to notify and to assist the veteran and that no further action is necessary to meet the requirements of the VCAA. Factual Background The veteran contends that she is entitled to an effective date earlier than December 9, 1999 for service connection for PTSD. Specifically, she contends that since the events causing her PTSD occurred during service, the proper effective date for her service-connected PTSD should be her date of discharge from active service. In December 1984, VA received the veteran's claim for service connection for "nervous disorders." In a January 1985 rating decision , the RO denied that claim, finding that the veteran had been diagnosed with a congenital personality disorder that was not aggravated during service. That same month, the RO sent the veteran a letter informing her of this rating decision and of her appellate rights. She did not appeal; thus, the January 1985 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2007). In April 1992, the veteran sought service connection for psychosis. In June 1992, the RO denied that claim, determining that the veteran had not submitted evidence showing that a psychosis or neurosis was incurred in or aggravated by active service or existed within one year of separation from active service. The veteran was informed of this decision and of her appellate rights. She did not appeal and that decision became final. Id. Following the June 1992 rating decision, the next relevant communication from the veteran was date-stamped as received by VA on December 9, 1999. At that time, the veteran claimed entitlement to service connection for PTSD. She also submitted a January 1995 letter from J.B., Ph.D (Dr. J.B.) indicating that she suffered from PTSD. Laws and Regulations A "claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The effective date of a grant of service connection is governed by 38 U.S.C.A. § 5110 as implemented by 38 C.F.R. § 3.400. 38 U.S.C.A. § 5110(a) states, "unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(b)(1) states that "the effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefore is received within one year from such date of discharge or release." The regulation implementing 38 U.S.C.A. § 5110 provides that the effective date of an evaluation and award of compensation based on direct service connection shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from active service; otherwise the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(i)(2). The effective date of a finally disallowed claim which is reopened based on submission of new and material evidence, where that evidence is other than service department records, will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q),(r). Analysis The Board finds that the preponderance of the evidence is against an effective date earlier than December 9, 1999, for an award of service connection for PTSD. AS noted elsewhere, the effective date of an increased rating claim is the date that entitlement arose or the date that the claim was received by VA, whichever is the later date (emphasis added). 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The veteran's original claim of service connection for PTSD was received by the RO on December 9, 1999; there is no evidence that the veteran filed such a claim prior to this date; thus, December 9, 1999, is the proper effective date for an award of service connection for PTSD. In this regard, the Board notes that the claim of service connection for PTSD, date-stamped as received by the RO on December 9, 1999, was a new claim and not an application to reopen a previously denied claim. See Boggs v. Peake, No. 2007-7137 (Fed. Cir. Mar. 26, 2008). There was no diagnosis of PTSD of record prior to December 9, 1999. For example, at the time of the January 1985 rating decision denying her service connection claim for a nervous disorder, the veteran was diagnosed with dysthymic personality disorder. There also is no evidence of a diagnosis of PTSD at the time of the June 1992 rating decision which denied her service connection claim for psychosis. The first diagnosis for PTSD is found in Dr. J.B.'s January 1995 letter which was date-stamped as received by the RO on December 9, 1999. Hence, the factual basis for the claims denied in 1985 and 1999 was not the same as the factual basis for her claim received in December 1999. Id. Although the veteran's December 1999 claim initially was misconstrued by the RO as an application to reopen a previously denied claim, this error would not change the outcome of this appeal. The effective date of service connection based on a finally disallowed claim which is reopened subsequently after the receipt of new and material evidence is the date that the claim to reopen was received by VA, not the date of the original claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In short, even assuming that the veteran's December 1999 claim was, in fact, an application to reopen a previously denied service connection claim, VA is precluded from assigning an effective date earlier than December 9, 1999 for an award of service connection for PTSD. As the preponderance of the evidence is against the veteran's claim, the benefit-of- the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to an effective date earlier than December 9, 1999, for an award of service connection for PTSD is denied. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs