Citation Nr: 1122194 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 10-01 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an effective date earlier than May 5, 2009, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from May 1944 to July 1946. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which granted service connection for PTSD, and assigned a 30 percent disability evaluation effective May 5, 2009. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's initial claim for service connection for PTSD was filed at the RO on December 28, 2007. Service connection was subsequently granted, effective May 5, 2009. 2. The first complaint, finding, and diagnosis of PTSD were not until a May 5, 2009, VA examination report. CONCLUSION OF LAW The requirements for an effective date earlier than May 5, 2009, for the grant of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.151, 3.155, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2010). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). The Veteran was provided with a VCAA notice in letter dated in January 2008. This letter informed him of the information and evidence necessary to establish service connection as well as the information and evidence necessary to establish effective dates and disability ratings. The Veteran's claim for an earlier effective date of service connection for his PTSD arise from his disagreement with the effective date assigned following the grant of entitlement to service connection for the disability. Once a claim is granted it is substantiated and additional notice is not required. Thus, any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). As to VA's duty to assist, the Board notes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request, have been associated with the claims folder. 38 U.S.C.A. § 5103A (West 2002. On his VA Form 9, substantive appeal, received in December 2009, the Veteran stated that he received medical treatment from the VA in Topeka, Kansas in the 1980's. However, he does not indicate, nor does the record reflect that he received treatment for PTSD or any other psychiatric disability. Indeed, the Veteran, himself, indicates that he was treated for a stomach condition, which he feels was in error. There is no indication that there are VA treatment records dating back to the 1980's pertinent for any type of psychiatric disorder. Additionally, the Veteran indicated that he would submit additional evidence in support of his claim. To date, no additional evidence in support of his claim for an earlier effective date has been received. The United States Court of Appeals for Veterans Claims (Court) has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As such, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the Board's adjudication of his claim. Analysis The Veteran seeks an effective date earlier than the currently assigned May 5, 2009, for service connection for PTSD. He contends that he has been receiving medical treatment since the 1980's, in particular for his stomach problems, which he felt was a mistake, and that he had ongoing treatment for PTSD. Unless otherwise provided, the effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(l); 38 C.F.R. § 3.400(b)(2). Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). A claim is defined as "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). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). 38 U.S.C. § 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Thus, before VA can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it. See also Brannon v. West, 12 Vet. App. 32 (1998). The Veteran filed his claim for service connection for PTSD on December 28, 2007, more than one year after his separation from active service in July 1946. As noted above, where a claim has been filed more than one year after the date of separation from service, the effective date of service connection is the date of the receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b). Here, the Veteran contends that he had PTSD prior to his filing his claim for service connection. However, review of the claims folder fails to show a diagnosis, treatment for PTSD and or any other psychiatric disability prior to May 5, 2009, the date of the VA examination. Notably, VA treatment records dated in July 2007 show that the Veteran had a negative PTSD screen and in December 2008 he did not evidence depression. Given that the Veteran's first complaints, findings, and diagnosis in the record of PTSD was not until May 5, 2009, and the date of his claim is December 28, 2007, the later of the dates is the date entitlement arose. The Board notes that there is no communication from the Veteran or his representative, or action of record indicating an intent to seek service connection for a psychiatric disability, to include PTSD, prior to December 28, 2007. In reaching the conclusion discussed herein, the Board has considered the Veteran's assertions that he had not been given a proper PTSD diagnosis, he had been receiving treatment at the VA since the 1980's, and that his treatment for a stomach condition was in error. He essentially appears to contend that his stomach issues were actually related to PTSD, and that he manifested PTSD earlier than May 2009. The Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he has stomach problems for which he received medical treatment. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Federal Circuit has stated in a footnote that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Buchanan v. Nicholson, 451 F.3d 1331-37 (Fed. Cir. 2006); see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997). While competent to report his observable perceptions such as stomach pain, the Veteran is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Thus, the Board concludes that the Veteran, while competent to report his past stomach problems, he is not competent to associate these complaints with PTSD. Significantly, the Veteran does not indicate that he was treated for any type of psychiatric condition to begin in the 1980's but merely that he received medical treatment from the VA since the 1980's. In any case, his statements regarding the treatment for PTSD carry no probative weight. The Board is persuaded by the objective medical evidence of record which specifically shows that there were no complaints, findings, or diagnosis of PTSD until the May 2009 VA examination report. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for an earlier effective date for service connection for PTSD and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date earlier than May 5, 2009, for the grant of service connection for PTSD is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs