Citation Nr: 1126149	
Decision Date: 07/12/11    Archive Date: 07/19/11

DOCKET NO.  05-26 964	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to an effective date earlier than May 6, 2004, for the award of service connection for posttraumatic stress disorder (PTSD).

(The issue of whether there was clear and unmistakable error (CUE) in the November 1980 rating decision, denying service connection for posttraumatic stress neurosis (claimed as delayed stress neurosis) is the subject of another decision.)


REPRESENTATION

Veteran represented by:	Rebecca J. Bernhard, Attorney at Law


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel


INTRODUCTION

The Veteran had active duty service from June 1966 to April 1969, where he earned several decorations and medals, including a Navy Achievement Medal with a combat device, for his heroic actions during his service in the Republic of Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in St. Paul, Minnesota, in which the RO granted service connection for PTSD and assigned an initial 30 percent rating, effective May 6, 2004.  The Veteran timely appealed the denial of an earlier effective date for service connection.

In an unappealed November 1980 rating decision, service connection for posttraumatic stress neurosis (claimed as delayed stress neurosis) was denied.  As a result, that rating decision is considered final.

The Veteran was notified in April 1981 that he owed VA money which had been erroneously overpaid to him in March 1975.  In a June 1982 correspondence, the Veteran filed for waiver of overpayment of debt, which was denied in a June 1982 rating action.  Although the Veteran filed a notice of disagreement (NOD) in October 1982 with that determination and a statement of the case (SOC) was issued in November 1982 as to the denial of his waiver of overpayment request, the Veteran failed to submit a timely substantive appeal within one year of the June 1982 denial and, thus this issue is not in appellate status.

In the October 2004 rating decision, the subject of this appeal, the RO reopened and granted service connection for PTSD, assigning an initial 50 percent disability rating, effective May 6, 2004-the date on which the Veteran's claim to reopen was received.  In a March 2005 notice of disagreement (NOD), the Veteran filed an NOD with regard to both the effective date and the initial disability rating assigned for PTSD, indicating that he wanted an October 1980 effective date and an initial rating of 50 percent.  In a June 2005 rating decision and statement of the case (SOC), an initial disability rating of 50 percent for PTSD was assigned, effective from May 6, 2004.  In a timely July 2005 substantive appeal, the Veteran specifically indicated that he wished to continue appeal only as to the effective date of grant of service connection for PTSD.  Therefore, the issue of a higher initial rating for PTSD is not on appeal.  Accordingly, the October 2004 and June 2005 rating decisions are final as to the initial disability rating assigned for the Veteran's PTSD.  The Board will not address that issue in this decision.

In March 2006, the Veteran testified during a videoconference hearing before one of the undersigned Veterans Law Judges at the RO; a transcript of that hearing is associated with the claims file.  During that hearing, the Veteran raised the issue of CUE in the November 1980 decision as another theory of entitlement to an earlier effective date for the grant of service connection for PTSD.  

In May 2007, the Board remanded the case in order for the RO to adjudicate the inextricably intertwined issue of CUE in the November 1980 rating decision.  The RO issued a June 2007 rating decision, also the subject of this appeal, denying the Veteran's CUE claim.  

Meanwhile, in June 2008, the Veteran submitted a timely NOD with the June 2007 RO's denial of the Veteran's CUE claim.  After the issuance of a statement of the case, in October 2008, the Veteran submitted a timely substantive appeal.  

The Veteran's earlier effective date claim was recertified to the Board and a Board decision denying that claim was issued in October 2007.  The Veteran timely appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court).  
Such raised issue of CUE was eventually also appealed to the Board and has been adjudicated in a separate decision as a panel decision; the Board will not address the issue of CUE in this decision.

The Court issued a May 2010 memorandum decision vacating the October 2007 Board decision, as the issue of an earlier effective date for service connection was inextricably intertwined with the CUE claim pending before the Board.  Judgment was entered by Order dated in June 2010 and the earlier effective date claim was returned by the Court in August 2010 and is the subject of this decision.  

In a separate, simultaneously issued decision, the Veteran's appeal claiming CUE in the November 1980 rating decision, denying service connection for posttraumatic stress neurosis (claimed as delayed stress neurosis), was dismissed without prejudice.  

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 claim to reopen service connection for PTSD was received by the RO on May 6, 2004, the earliest possible effective date for entitlement to compensation benefits for PTSD as no other informal claim was received between November 1980 and May 6, 2004.

2.  The Veteran's July 1982 and October 1982 statements do not show an intent to apply for VA compensation benefits for PTSD, but are merely made in the context of applying for a waiver of overpayment for education benefits which accrued in March 1975; likewise Vet Center treatment records between 1980 and 1989 do not show an intent to apply for service connection for PTSD.



CONCLUSION OF LAW

The criteria for an effective date earlier than May 6, 2004, for the award of service connection for PTSD have not been met.  38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400 (2003-2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010).  

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim.  Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran's earlier effective date claim arises from an appeal of a rating decision granting service connection for PTSD.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA for the earlier effective date claim in this case.

Next, VA has a duty to assist the Veteran in the development of the claim.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, the Veteran's statements in support of the claim are of record, including testimony provided at the March 2006 hearing before the undersigned.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

Analysis

The Board has reviewed all of the evidence in the Veteran's claims file.  Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 

A VA examination report will be accepted as an informal claim for benefits once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree.  38 C.F.R. § 3.157(b) and (b)(1) (2003-2010).  The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim.  The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim.  The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized, but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted.  The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.  38 C.F.R. § 3.157(b).  Similarly, the date of receipt of evidence from a private physician or layman will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits.  Moreover, when authenticated evidence from state and other institutions is submitted by or on behalf of the Veteran and entitlement is shown, date of receipt by the VA of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals.  Benefits will be granted if the records are adequate for rating purposes; otherwise findings will be verified by official examination.  38 C.F.R. § 3.157.

A report of examination or hospitalization which meets the requirements of 38 C.F.R. § 3.157 will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement.  Such evidence will also be accepted as an informal claim for pension previously denied for the reason the disability was not permanently and totally disabling.  Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of 38 C.F.R. § 3.114 with respect to action on VA initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of one year prior to the date of receipt of the report.

The VA is considered to have constructive notice of medical records in VA's possession.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).  The doctrine of "constructive possession" of VA records laid out by the Court in Bell is not applicable prior to Bell, which was decided in 1992.  See Lynch v. Gober, 10 Vet. App. 127 (1997).

The award of benefits based on a finding of error in a prior decision under 38 C.F.R. § 3.105 is the date from which benefits would have been payable if the corrected decision had been made on the date of the reversed decision.  38 C.F.R. § 3.400(k).  As the Board has dismissed the Veteran's CUE claim with regard to the November 1980 rating decision, denying service connection for posttraumatic stress neurosis (claimed as delayed stress neurosis), this provision is inapplicable here.

Further, unless specifically provided otherwise, the effective date of an award of compensation based on a claim, which has been reopened after final adjudication, shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application.  Awards based on new and material evidence received after final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii), (r) (2003-2010). 

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is sui juris may be considered an informal claim. Such informal claim must identify the benefit sought.  When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim.  38 C.F.R. § 3.155 (2003-2010).

The Veteran's original claim for service connection was denied by the RO in November 1980.  He was notified of this decision and his appellate rights in a December 1980 letter, but he did not appeal.  The November 1980 rating action thus became final.  38 U.S.C.A. § 7105(c) (West 1991 & West 2002); 38 C.F.R. §§ 3.104(a) (1980-2010), 19.192 (1980) (now 20.1103 (2010)).  In order to reopen the claim, VA had to receive new and material evidence with respect to that claim.  38 U.S.C.A. § 5108(West 1991 &West 2002); 38 C.F.R. § 3.156(a) (2005) (formerly VAR 1205).

The Veteran was awarded service connection for PTSD, effective on May 6, 2004, the date on which the Veteran's claim to reopen service connection for PTSD was received by the RO.  

As noted above, the earliest possible effective date for a reopened claim is the date of claim.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii), (r).  Accordingly, the earliest effective date possible is the currently assigned May 6, 2004, the date on which VA received the Veteran's claim to reopen service connection.  See 38 C.F.R. § 3.400(r).

During the May 2006 hearing and in various statements, the Veteran claims that he is entitled to an earlier effective date based on 38 C.F.R. §§ 3.155 and 3.157.  He specifically argues that the he sought treatment at the St. Paul Vet Center in December 1980, and again in 1981.  He also asserts that his June 1982 letter for waiver of overpayment, or his subsequent NOD with the denial of a waiver in October 1982, should be construed as an informal claim to reopen his previously-denied claim of entitlement to service connection for PTSD.

The VA administrative claims process recognizes formal and informal claims.  A formal claim is one that has been filed in the form prescribed by the Secretary.  38 C.F.R. § 3.151 (2010).  Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim.  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 filed as of the date of receipt of the informal claim.  When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim.  38 C.F.R. 3.155 (2010).

"Application" is not defined in the statute.  However, in the regulations, "claim" and "application" are considered equivalent and are 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) (2010); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999).

The United States Court of Appeals for the Federal Circuit (Federal Circuit), in Rodriguez pointed out that for purposes of establishing the requirements and procedures for seeking veterans' benefits, a claim, whether "formal" or "informal" must be "in writing" in order to be considered a "claim" or "application" for benefits, and that the provisions of 38 C.F.R. § 3.1(p) define "claim," informal as well as formal, as a "communication in writing."  Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) refers to "an informal claim," it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1(p) as a "communication in writing."  The Federal Circuit also pointed out the provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim must take.  All that is required is that the communication "indicat[e] an intent to apply for one or more benefits under the laws administered by the Department," and "identify the benefits sought."

Applicable statutory and regulatory provisions require VA look to all communications from the Veteran which may be interpreted as applications or claims-formal and informal-for benefits.  In particular, VA is required to identify and act on informal claims for benefits.  38 C.F.R. §§ 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196 (1992).

Additionally, the Veteran argues that 38 C.F.R. § 3.157(b) is applicable in this case.  However, "[t]he mere presence of the medical evidence [in the record] does not establish an intent on the part of the veteran to seek" service connection for a condition.  See Brannon v. West, 12 Vet. App. 32, 35 (1998).  The mere receipt of medical records cannot be construed as an informal claim.  See Lalonde v. West, 12 Vet. App. 377, 382 (1999); see also Criswell v. Nicholson, 20 Vet. App. 501 (2006) (the mere existence of medical records generally cannot be construed as an informal claim for VA benefits, but rather there must be some intent by the claimant to apply for benefits).  

In this case, the Veteran contends that a claim to reopen was reasonably raised by that fact that he sought treatment with the Vet Center in 1980 and 1981, and again in 1988 to 1989, as documented by the undated Vet Center letter and by the Vet Center records the Veteran submitted from 1988 to 1989 in support of his contention, constitute an informal claim to reopen service connection for PTSD following the RO's November 1980 denial.  

Those records, however, cannot be used as an informal claim to reopen the previously-denied claim for service connection because the mere presence of those treatment records does not show an intent on the part of the Veteran to apply for VA compensation benefits.  See Brannon, 12 Vet. App. at 35 (the mere presence of medical records does not connote an intent to apply for VA benefits).  Therefore, those records cannot be construed as an informal claim(s) so as to serve as a basis for the award of an earlier effective date in this case.

Additionally, as noted in the Introduction, the Veteran was awarded education benefits in March 1975, and was overpaid benefits at that time.  In April 1981, the Veteran was informed of that overpayment and a collection action was taken against him.  In June 1982, the Veteran submitted a 6-page handwritten letter asking for a waiver of overpayment of the debt as a result of the overpayment of education benefits in 1975.  The Veteran details several experiences from his period of service in the United State Marine Corps, particularly in the Republic of Vietnam.  Some examples of those experiences included witnessing one of his friends killed in a mine explosion minutes after his friend was substituted to the point position in relief of the Veteran, and seeing dead bodies of women and children after an airstrike took out an "enemy village."  He also stated that he took part in the Tet Offensive.  

He further stated that he left the military in 1969 and returned to community college, where he was angry at the anti-war protest movement and with the government.  The Veteran stated that he turned to alcohol to cope with these feelings and that, during this period, he had three children from 1970 to 1975 and that his wife would frequently separate from him, because he "was unreachable, brooding and insane."  He noted that all of these feelings, including suicidal ideations, reliving Vietnam experiences and nightmares of Vietnam which involved his children, culminated in 1975 during the fall of the Saigon government.  He noted, during that time, that he sobbed uncontrollably, hated his Vietnam experiences and felt guilty for having survived it.  He further indicated that he could not manage a checking account during the period the debt was incurred, and that he had to close checking accounts with three different banks and had a lawsuit filed against him by an insurance agent for monies owed to the insurance company during this period.  The Veteran also stated that he failed to file a tax return for three of those years, but that because of these same circumstances the IRS had abated the penalties.  The Veteran further indicated that he sought treatment for alcoholism in 1977, during which an MMPI demonstrated "a record-breaking high in anger and depression."  He also stated that he started going to RAP groups at VA in 1979, and that "since that time I have been able to stabilize my life quite a bit."  He noted that there had subsequently been amnesty granted for draft-dodgers, deserters and for refugees of the war.  He concluded his statement with a request that VA forgive the debt incurred and withdraw the collection action, particularly with this spirit of amnesty in mind.

In a June 1982 rating action, the RO denied the Veteran's request for a waiver of overpayment.  In October 1982, the Veteran submitted an NOD with that denial.  In the NOD, the Veteran stated that he had been informed that VA had a two-year appeal period during which his debt could be waived for "mitigating circumstances."  He noted that was the purpose in writing his prior explanation, which he termed a "request for forgiveness of my debt."  He stated that he would "like to know what circumstance could be more mitigating than a total mental-emotional breakdown as a result of my combat experience."  He concluded that he intended to appeal the waiver issue and that he wished to have a personal hearing before the Board on this matter.

While these two letters pertaining to the issue of waiver of overpayment were filed in June 1982 and October 1982, during his current appeal, the Veteran has argued that such statements should have been construed as informal claims to reopen his previously-denied claim for service connection.  

The Board finds that these statements cannot be so construed.  First, the Board notes that while both are in writing-the first element of an informal claim-neither of these statements demonstrates intent to file for VA compensation benefits.  Specifically, the Board notes that the Veteran in his June 1982 letter gives a short history of his experiences in Vietnam and shortly thereafter, including the period during which the debt with VA was incurred.  He noted that several of these issues affected major portions of his life, including work and family life, but that after seeking treatment with VA RAP groups he "stabilized his life quite a bit."  He specifically stated that he was asking for VA to understand that at the time the debt was incurred he was having psychiatric issues because of his combat experiences in Vietnam, and that the IRS had already forgiven debts accumulated during that same period on the same grounds he was presenting VA with currently.  

These statements do not reasonably raise an informal claim for service connection as they do not indicate an intent on the part of the Veteran to file for VA compensation benefits.  Specifically, the Veteran indicated that he had "stabilized his life quite a bit" following treatment.  The Veteran was merely telling a story of how he had been affected in the past, but not that he was currently seeking benefits or treatment from VA for a psychiatric disability.

Moreover, the Veteran's October 1982 letter specifically states that the June 1982 letter was a "request for forgiveness of [his] debt" and the intent of that statement was to demonstrate the criteria necessary for the grant of a waiver of overpayment-"mitigating circumstances."  Additionally, while the Veteran stated in the October 1982 letter that he had had a mental-emotional breakdown from his combat experiences, such a statement was made in the context of a legal argument as to why his waiver of overpayment should be granted-such a past mental breakdown being a "mitigating circumstance" on which the debt could have been forgiven.  Neither of these statements shows an intent to apply for VA compensation benefits, but merely the Veteran's wish to be absolved of the debt to VA which he had incurred in March 1975.

In short, as the July 1982 and October 1982 statements cannot reasonably be construed as showing an implied intent by the Veteran to apply for VA compensation benefits for a psychiatric disability, they were not informal claims.  See 38 C.F.R. §§ 3.1(p), 3.155; Rodriguez, supra.  Additionally, as medical treatment records cannot be construed as informal claims except when it is clear from the record that the claimant has indicated that he intends to seek compensation (service connection) for a disability previously-denied, the Veteran's treatment with the St. Paul Vet Center in 1980, 1981, 1988 and 1989 also cannot reasonably be construed as informal claims to reopen a claim for service connection.  

Accordingly, the Board finds that the first document that can be construed as an informal claim for VA compensation benefits for PTSD was the Veteran's petition to reopen a claim for service connection for a psychiatric disability (PTSD) received by the RO on May 6, 2004.  Thus, an earlier effective date for the award of service connection for PTSD is therefore not warranted on the evidence of record.  See 38 C.F.R. § 3.400(r).

The Board is constrained from assigning an earlier effective date absent regulatory provisions authorizing such.  No such provision exists which, upon application to the facts of this case, would result in assignment of an earlier effective date.  As a result, the claim for an effective date earlier than May 6, 2004 for the award of service connection for PTSD must be denied.  The facts are not in dispute and application of the law to the facts is dispositive.  Where, as here, there is no entitlement under the law to the benefit sought, the appeal must be terminated.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

An effective date earlier than May 6, 2004, for the award of service connection for PTSD is denied.



____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs