Citation Nr: 1128047 Decision Date: 07/27/11 Archive Date: 08/02/11 DOCKET NO. 06-13 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an effective date earlier than October 25, 2005, for the award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran had active service from September 1967 to September 1969, and from May 1972 to May 1975. His decorations include the Combat Infantryman Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of a Department of Veterans Affairs (VA), Regional Office (RO), in Jackson, Mississippi, which granted service connection for PTSD, and assigned an initial 30 percent disability rating, effective October 25, 2005. The Veteran perfected an appeal as to the effective date for the award of service connection for PTSD. In December 2008, the Veteran testified at a video conference hearing over which the undersigned Acting Veterans Law Judge presided. A copy of the hearing transcript is of record and has been reviewed. In July 2010, the Board remanded the claim for further development. In a September 2010 rating decision, the RO determined that a clear and unmistakable error was not contained in October 1992 and June 1995 rating decisions that denied service connection for PTSD. To date, the Veteran has not appealed the September 2010 rating decision. FINDINGS OF FACT 1. In an unappealed October 1992 rating decision, the RO denied service connection for PTSD. 2. In an unappealed June 1995 rating decision, the RO essentially determined that new and material evidence had not been received to reopen a service connection claim for PTSD. 3. On October 25, 2005, the RO received the Veteran's request to reopen his service connection claim for PTSD. 4. There is no communication from the Veteran or his representative that constitutes a formal claim or that may be construed as an informal claim to reopen a service connection claim for PTSD subsequent to the final June 1995 rating decision and prior to October 25, 2005. CONCLUSION OF LAW The criteria for an effective date prior to October 25, 2005, for the award of service connection for PTSD, are not met. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). This claim arises from the Veteran's disagreement with the effective date assigned following the grant of 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 the VCAA. In any event, the Board notes that VA provided the Veteran VCAA notice with respect to the earlier effective date claim in May 2007 and February 2009. As to VA's duty to assist, the RO associated all pertinent evidence and has adjudicated the intertwined clear and unmistakable error claim. No additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Background The Veteran is seeking an effective date earlier than October 25, 2005, for the grant of service connection for PTSD. He maintains that he is entitled to an effective date in 1995 when he filed a PTSD claim. See January 2006 notice of disagreement. By way of history in this case, the Veteran filed an initial claim of service connection for PTSD in August 1992. In an October 1992 rating decision, the RO denied service connection for PTSD, and in the same month, the RO notified him of the determination and of his appellate rights. The Veteran did not appeal that decision. During a February 1995 VA hospital admission, the Veteran was diagnosed with PTSD. The record contains subsequent diagnoses of PTSD. Thereafter, in June 1995, the RO received the Veteran's request to reopen his service connection claim for PTSD, the RO essentially declined to reopen the claim, and in the same month, the RO notified him of the determination and of his appellate rights. The Veteran did not appeal that decision. On October 25, 2005, the RO received another request from the Veteran to reopen his service connection claim for PTSD. Such claim was granted by the RO in a December 2005 rating decision, effective October 25, 2005. Legal Criteria The effective date of an award is generally the date of receipt of a claim (or informal claim where appropriate), or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2010). More specifically, the effective date of an award of disability compensation for direct service connection is the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from service; otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2010). If a Veteran files an application for service connection with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board. See 38 U.S.C.A. §§ 7104, 7105 (West 2002). If he does not initiate an appeal within one year, or if he initiates a timely appeal and the appeal is denied, the disallowance becomes final. See 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010). With exceptions not here applicable, any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application. See 38 C.F.R. § 3.400(q), (r) (2010). Specifically, the effective date of an award of disability compensation based upon the submission of new and material evidence other than service department records received after final disallowance will be the date of receipt of the new claim or the date that entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (2010). Generally, 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. See 38 C.F.R. § 3.151(a) (2010). However, 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 not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 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. 38 C.F.R. § 3.155 (2010). An informal claim must identify the benefit sought. See Brannon v. West, 12 Vet. App. 32, 34 (1998) (noting that VA "is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed and citing Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) for the proposition that VA is not required to do a "prognostication" but to review issues reasonably raised by the substantive appeal). Further, in Rudd v. Nicholson, 20 Vet. App. 296 (2006), the Court stated that a claimant can attempt to overcome the finality of a decision which assigns an effective date in one of two ways, by a request for revision of those regional office decisions based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C.A. § 5109A(a) (West 2002) ("A decision by the Secretary . . . is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised."); 38 U.S.C.A. § 5108 (West 2002) ("If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim."); Andrews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005). Analysis After a complete review of the record, the Board finds that an effective date earlier than October 25, 2005, is not warranted for the award of service connection for PTSD. Initially, the Board notes that the Veteran did not appeal the October 1992 and June 1995 rating decisions that denied service connection for PTSD. The Board is cognizant that the Veteran, during his videoconference hearing conducted in December 2008, alleged that the RO's October 1992 and June 1995 rating decisions are the product of clear and unmistakable error. Nevertheless, in the September 2010 rating decision, the RO determined that the October 1992 and June 1995 rating decisions did not contain clear and unmistakable error. Since it is undisputed that the Veteran did not appeal the RO's October 1992 and June 1995 rating decisions, and clear and unmistakable error has not been found in those decisions, they are final. As such, entitlement to an earlier effective date for the award of service connection for PTSD is not warranted on this basis. As noted, the record reflects that the Veteran's application to reopen a claim of service connection for PTSD was received at the RO on October 25, 2005. Significantly, there is no communication from the Veteran or his representative or action of record indicating an intent to seek service connection for PTSD received between June 1995 and October 2005. Thus, the Board concludes that the Veteran did not submit an informal claim subsequent to the final June 1995 rating decision and prior to the currently assigned effective date. As noted, any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application. Indeed, in Leonard v. Nicholson, the Court determined that, even when a Veteran has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date." Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that "no matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). Consequently, there is no legal basis upon which to grant an effective date prior to October 25, 2005, for the grant of service connection for PTSD. As the preponderance of the evidence is against the claim, the reasonable doubt doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002). The claim is therefore denied. ORDER Entitlement to an effective date earlier than October 25, 2005, for the award of service connection for PTSD is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs