Citation Nr: 1002467 Decision Date: 01/14/10 Archive Date: 01/22/10 DOCKET NO. 06-29 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an effective date earlier than February 12, 2004 for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active military service from August 1966 to August 1968. His DD214 reflects that he is a recipient of the Purple Heart and a Bronze Star. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In January 2008, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. In March 2008, the Board remanded this matter to the RO for additional development. After completing the requested actions, the RO continued the denial of the claim (as reflected in an October 2009 supplemental statement of the case) and returned this matter to the Board for additional appellate consideration. In March 2008, the Board also remanded to the RO the matter of whether there was clear and unmistakable error (CUE) in the June 1988 rating decision that denied service connection for PTSD, to issue the Veteran a statement of the case (SOC). In October 2009, the RO issued the Veteran a SOC on this matter and informed the Veteran, in pertinent part, that he must file an appeal within 60 days of the date of the contemporaneous letter. As the time period for submission of a perfected appeal has past, and no correspondence has been received from the Veteran or his representative (i.e. a VA Form 9 or the like) to date, this matter is not before the Board. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. In a June 1988 decision, the RO denied the Veteran's claim for service connection for PTSD. Although the RO notified the Veteran of this decision in August 1988, he did not initiate an appeal. This decision became final. 3. On September 7, 1994, the RO received the Veteran's statement in which he indicated that he sought to reopen his claim for service connection for PTSD. The Veteran was informed by the RO in a September 1994 letter of the need to submit new and material evidence, specifically, medical evidence of a current disability. No response was received from the Veteran within one year of the RO's request; therefore, the Board considers the 1994 claim to reopen to be abandoned. 4. On February 12, 2004, the RO received a statement for the Veteran that the RO accepted as his request to reopen his claim for service connection for PTSD. 5. In a September 2004 decision, the RO reopened and granted service connection for PTSD, effective February 12, 2004. 6. Prior to February 12, 2004, there was no pending claim, formal or informal, pursuant to which service connection for PTSD could have been granted. CONCLUSION OF LAW The claim for an effective date earlier than February 12, 2004 for the grant of service connection for PTSD is without legal merit. 38 U.S.C.A. § 5110 (2002); 38 C.F.R. § 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2009) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009). In the present appeal, in the August 2006 SOC, the RO set forth the provisions of 38 C.F.R. § 3.400 and explained the criteria governing effective dates. Moreover, the Veteran and his representative have been afforded the opportunity to present evidence and argument with respect to the claim for an earlier effective date. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the appellant. As explained below, the claim for an earlier effective date lacks legal merit; therefore, the duties to notify and assist required by the VCAA are not applicable to this claim. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. Analysis Generally, the effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.400 (2009). If a claim is received within one year after separation from service, the effective date for the grant of service connection is the day following separation from service; otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2009). The effective date of a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2009); 38 C.F.R. § 3.400(q)(1)(ii) (2009). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.151(a) (2009). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2009). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2009). A review of the record reveals that the Veteran first filed a claim for service connection for PTSD in July 1987. He was notified by rating action dated in June 1988 that his claim had been denied, but did not file a timely appeal and this determination became final. See 38 C.F.R. § 20.1103 (2009). On September 7, 1994, the RO received the Veteran's statement in which he indicated that he sought to reopen his claim for service connection for PTSD. The Veteran was informed by the RO in a September 1994 letter of the need to submit new and material evidence, specifically, medical evidence of a current disability. The record shows that the Veteran did not submit any additional evidence, to include the requested medical evidence of a current disability, within one year of the VA's request; therefore, the Board considers the 1994 claim to reopen to be abandoned. See 38 C.F.R. § 3.158(a). On February 12, 2004, the Veteran submitted a statement that the RO accepted as a request to reopen his claim for service connection for PTSD. Vet Center records from February 2004 to June 2004 reflect that the Veteran was seen for counseling regarding issues related to his service in Vietnam. His GAF score was 45. In a July 2004 letter, a team leader from the Vet Center briefly discussed the Veteran's service in Vietnam and noted he was medivaced for shrapnel wounds which led to the Veteran's receipt of the Purple Heart. He described the Veteran's psychiatric symptoms and noted that the Veteran had joined that Combat PTSD group for weekly meetings. The Veteran's current GAF was noted as 38. A September 2004 QTC examination report reflects that the Veteran was diagnosed with PTSD, chronic with a severe history of unusual psychological trauma, specifically having served in combat in the Vietnam War. Based on such findings, service connection for PTSD was granted by rating action dated in September 2004, effective from February 12, 2004, the date of receipt of the claim to reopen. In this case, the Board finds that after the June 1988 final decision and prior to the February 12, 2004 claim to reopen, there is no document indicating an intent by the Veteran to reopen his claim for service connection for PTSD, other than the September 1994 claim which, as discussed above, was abandoned. Accordingly, on these facts, the date of the February 12, 2004 statement from the Veteran-accepted as petition to reopen the previously denied claim for service connection for PTSD - is the earliest effective date that may be assigned for the grant of this benefit. See 38 C.F.R. § 3.400(q)(1)(ii) (2009). The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2009); see also Rudd v. Nicholson, 20 Vet. App. 296 (2006). As there is no legal basis for assignment of any earlier effective date for the award of service connection for PTSD, the Board finds that the claims for earlier effective dates must be denied. Where, as here, the law is dispositive of the claim, the appeal must be terminated or denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is noted that recently medical records of treatment in the 1980's. This information does not provide a basis for changing the effective date as it was not on file at the time the earlier decision was entered. Information concerning medals and awards was also submitted, but this information was known at the time of the earlier decision. This case, as noted, is decided by operation of law by which the Board is bound. ORDER An effective date earlier than February 12, 2004, for the grant of service connection for PTSD is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs