Citation Nr: 1129752 Decision Date: 08/11/11 Archive Date: 08/23/11 DOCKET NO. 10-45 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date earlier than April 7, 2009, for the grant of service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Douglas E. Massey, Counsel INTRODUCTION The Veteran served on active duty from July 1968 to July 1970. This appeal to the Board of Veterans' Appeals (Board) is from a June 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which granted service connection for PTSD and assigned an effective date of April 7, 2009. The Veteran wants an earlier effective date. The Board has advanced this appeal on the 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. In a September 1996 decision, the Board denied service connection for PTSD because a clear diagnosis of this condition had not been established by the evidence then of record. 2. The Veteran attempted to appeal that September 1996 Board decision to the U.S. Court of Appeals for Veterans Claims (Court/CAVC), but the Court dismissed his appeal for failure to comply with Rule 3(e) of the Court's Rules of Practice and Procedure by submitting either the $50.00 filing fee or a motion to waive this filing fee. 3. On April 7, 2009, the Veteran filed another claim for service connection for PTSD, which the RO properly construed as a petition to reopen this claim on the basis of new and material evidence since it already had been previously considered and denied, including by the Board on appeal, and he had not completed the steps necessary to appeal the Board's decision to the Court. 4. During the intervening period from the September 1996 Board decision until April 7, 2009, neither a formal nor an informal communication in writing was received from the Veteran requesting service connection for PTSD or evidencing a belief in his entitlement to this benefit. 5. In the June 2009 decision at issue in this appeal, the RO granted this claim for service connection for PTSD, effective April 7, 2009, the date he had filed his most recent claim for service connection for this condition. 6. There is no claim or allegation, with sufficient specificity, collaterally attacking the Board's September 1996 decision earlier denying this claim on the grounds that it involved clear and unmistakable error (CUE). CONCLUSION OF LAW The criteria are not met for an effective date earlier than April 7, 2009, for the grant of service connection for PTSD. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.159, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), before addressing the merits of a claim for VA disability benefits, the Board generally is required to ensure that VA's duty-to-notify-and-assist obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). But as service connection for PTSD has been granted (the context in which the claim initially arose), and an initial rating and effective date have been assigned, the notice requirements of the VCAA have been met because the initial intended purpose of the notice has been served. Additional VCAA notice is not required concerning this "downstream" effective date element of the claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA's General Counsel has clarified that no additional VCAA notice is required for a downstream issue, including regarding the effective date, and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). Instead of issuing an additional VCAA notice in this situation, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved. And since the RO issued an SOC in October 2010 addressing the downstream earlier-effective-date claim, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). Consequently, the Board finds that all necessary development of the downstream earlier-effective-date claim has been accomplished, and therefore appellate review of this claim may proceed without prejudicing the Veteran. Moreover, resolution of this claim ultimately turns on when he filed this claim (actually, the petition to reopen this claim), so an examination and opinion are not needed to fairly decide this claim for an earlier effective date. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C). See also Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past). II. Analysis In the June 2009 decision from which this appeal ensued, the RO granted service connection for PTSD as of April 7, 2009, the date the Veteran had filed his petition to reopen this claim. The Board previously had considered and denied this claim on appeal in September 1996, and he believes he is entitled to an earlier effective date because he has had a diagnosis of PTSD since 1985. For the reasons and bases discussed below, however, the Board finds no legal grounds to assign an effective date earlier than April 7, 2009, so this appeal must be denied. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2010). In cases involving direct service connection, the effective date will be 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 effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The effective date of a successful claim to reopen is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. Id; Spencer v. Brown, 4 Vet. App. 283, 293 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994). When a claim is denied, and the claimant fails to timely appeal the decision by filing a notice of disagreement (NOD) within the one-year period prescribed in 38 U.S.C.A. § 7105(b)(1), or by submitting a timely Substantive Appeal (VA Form 9 or equivalent statement) in response to the SOC, the decision becomes final and binding on him based on the evidence then of record, and the claim may not thereafter be reopened or allowed except upon the submission of new and material evidence (see 38 U.S.C.A. § 5108 and 38 C.F.R. § 3.156) or by collateral attack by showing the prior final and binding decision involved CUE. See 38 U.S.C.A. §§ 7104(b), 7105(c) (West Supp. 2005); 38 C.F.R. §§ 3.104(a), 3.160(d), 3.105(a) (2010). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a). Any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. An informal claim must identify the benefit sought, however, but need not be specific. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The term "application" is used interchangeably with "claim" and 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) (2010); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). While VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant. That is to say, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Turning back now to the relevant facts and procedural history of this particular case. The RO received the Veteran's original claim for service connection for PTSD on February 21, 1991, so not only well more than one year after the conclusion of his military service in July 1970 but also well more than one year after he says he initially had received the initial diagnosis of PTSD in 1985. So even best case scenario, the earliest possible effective date he may receive is when he eventually filed this claim in February 1991. The law at the time provided that, in order to establish entitlement to service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular injury or disease resulting in a current disability was incurred in or aggravated coincident with service in the Armed Forces. See 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1991). But service connection for PTSD, in particular, at the time required medical evidence establishing a "clear" diagnosis of this condition, credible supporting evidence that the claimed in-service stressor actually had occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1991). The RO denied that initial claim in a July 1993 rating decision. The Veteran appealed to the Board, but the Board also denied that initial claim in a September 1996 decision because a "clear" diagnosis of PTSD had not been established by the evidence then of record. It was not until after that Board decision that this "clear" diagnosis standard for determining whether a Veteran had PTSD was rescinded. A "clear" diagnosis of PTSD is no longer required. Rather, this diagnosis need only be in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f) (2010). The Court eventually took judicial notice of the mental health profession's adoption of the DSM-IV, as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor was sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have had the same effect on "almost everyone." See Cohen v. Brown, 10 Vet. App. 128, 140-141 (1997). Again, though, this was not the situation when the Board initially considered the Veteran's claim in that September 1996 decision. He attempted to appeal that September 1996 Board decision to the Court. However, the Court dismissed his appeal for failing comply with Rule 3(e) of the Court's Rules of Practice and Procedure by submitting either the $50.00 filing fee or a motion to waive this filing fee. Therefore, the Board's September 1996 decision is final and binding on him based on the evidence then of record - and the law then in effect, and is not subject to revision on the same factual basis since the Chairman did not order reconsideration of that decision and no other exception to finality applies, such as a finding that that decision involved CUE. See 38 U.S.C.A. § 7104; 38 C.F.R. §§ 20.1000, 20.1001, 20.1100 (2010). The Veteran did not contact VA again regarding this claim for PTSD until April 7, 2009, which the RO correctly construed as a petition to reopen this claim on the basis of new and material evidence since this claim already had been considered, denied, and not appealed beyond the Board. The RO assisted him in developing this claim by providing him a VA compensation examination in May 2009. The examiner diagnosed PTSD based on an especially traumatic event ("stressor") during the Veteran military service. So the RO reopened this claim on the basis of this additional evidence and resultantly granted service connection for PTSD in the June 2009 decision at issue, retroactively effective from the date it had received the petition to reopen this claim, i.e., April 7, 2009. In response, the Veteran appealed that decision by requesting an earlier effective date. His only argument is that he "was dx [diagnosed] with PTSD by my same doctor since 1985." Unfortunately, this type of argument has been considered and rejected by the Court in previous cases. Since the Board's September 1996 decision previously considering and denying this claim is final and binding on the Veteran based on the evidence then in the file, he cannot receive an effective date retroactive to that earlier point in time based on a subsequently filed petition to reopen this same claim. The Court has held that the rule of finality regarding an original claim implies that the date of that claim is not to be a factor in determining an effective date if the claim is later reopened. The Court held that the term "new claim," as it appears in 38 C.F.R. § 3.400(q)(1)(ii), means a claim to reopen a previously and finally denied claim. Sears v. Principi, 16 Vet. App. 244, (2002); see also Livesay, 15 Vet. App. 165, 172 (2001) (holding that the plain meaning of § 5110 to be that "the phrase 'application therefor' means the application which resulted in the award of disability compensation that is to be assigned an effective date under section 5110."); Cook v. Principi, 258 F.3d 1311, 1314 (Fed. Cir. 2001) (affirming assignment of an effective date for a service-connection award based upon the reopened claim as the date on which the veteran "first sought to reopen his claim"). So the fact that the Veteran may have been diagnosed with PTSD as far back as 1985 is ultimately irrelevant to determining the effective date of his eventual award in light of the Board's intervening and final and binding September 1996 decision. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) also addressed this issue in Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir. 2005), holding that, "no matter how [a 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"). In other words, because the September 1996 decision is final and binding, it will be accepted as correct in the absence of collateral attack by showing it involved CUE. See 38 C.F.R. § 3.105(a). And, here, the Veteran has not made any specific allegation of CUE in any prior adjudication, including in that September 1996 decision by the Board. See 38 C.F.R. §§ 501(a), 7111; 38 C.F.R. §§ 20.1400, etc. CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). And absent this pleading or showing, there simply is no basis for a free-standing earlier effective date claim from matters addressed in a prior final and binding decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Since the Veteran filed his petition to reopen his claim on April 7, 2009, there is no basis to award an effective date prior to this date. The Board has reviewed the record in its entirety but finds no document during the intervening period between the final and binding September 1996 Board decision and the date the RO received the Veteran's petition to reopen his claim on April 7, 2009, which could be construed as either an informal or a formal claim for service connection for PTSD or any other diagnosed psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam) (holding that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). According to 38 U.S.C.A. § 5110(a), the effective date can be no earlier than April 7, 2009, the date the Veteran filed his petition to reopen that ultimately resulted in the grant of benefits. Since the Board's September 1996 decision is final and binding, the original claim filed on February 21, 1991, is not a pending claim. See Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) and McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (indicating a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability, but conversely, that a claim which has become final and binding in the absence of an appeal does not remain pending and subject to an earlier effective date). Hence, this appeal for an earlier effective date must be denied. ORDER The claim for an effective date earlier than April 7, 2009, for the grant of service connection for PTSD is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs