Citation Nr: 1302645 Decision Date: 01/24/13 Archive Date: 01/31/13 DOCKET NO. 10-38 670 ) 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 September 11, 2007, for an award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service from July 1951 to July 1953. The Appellant is the legal custodian of the Veteran for VA purposes. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. By that rating action, the RO granted service connection for PTSD; a 100 percent disability rating was assigned, effective September 11, 2007--the date the RO received the Veteran's petition to reopen a previously denied claim for service connection for an acquired psychiatric disorder, to include PTSD. (See Veteran's spouse's handwritten letter to VA, received by the RO on September 11, 2007). The Veteran appealed the RO's assignment of an effective date of September 11, 2007, to the award of service connection for PTSD. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. By a December 2005 decision, the Board denied service connection for an acquired psychiatric disorder, to include PTSD. 2. On September 11, 2007, the Veteran's spouse, on behalf of the Veteran, filed a request to reopen the previously denied claim for service connection for an acquired psychiatric disorder, to include PTSD. 3. By the appealed August 2008 rating action, the RO granted service connection for PTSD, effective September 11, 2007. CONCLUSION OF LAW The criteria for an effective date prior to September 11, 2007 for the grant of service connection for PTSD have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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 medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(2012). The Federal Circuit held that 38 U.S.C. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate a claim upon receipt of a notice of disagreement with the effective date assigned by a RO for a compensation award. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In this regard, once a decision has been made awarding service connection, a disability rating, and an effective date, § 5103(a) notice has served its purpose, as the claim has already been substantiated. Sutton v. Nicholson, 20 Vet. App. 419 (2006). Nevertheless, in an October 2012 letter to the Veteran, the RO notified him of the information necessary to substantiate the claim on appeal, and of his and VA's respective obligations for obtaining specified different types of evidence. See 38 C.F.R. § 3.159(b)(1). In particular, he was provided with an explanation of how VA determines, in part, effective dates in connection with all claims, including a previously denied claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While this notice did not precede the September 2010 Statement of the Case, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice regarding downstream elements such as the effective date. See Goodwin v. Peake, 22 Vet. App. 128 (2008). No such prejudice has been alleged in this case. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), and records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). Here, the Veteran's service treatment records, VA medical records, and identified private medical records have, if deemed necessary, been obtained and translated from Spanish to English. There is also no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims folders. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the Veteran in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Analysis The Veteran seeks an effective date earlier than September 11, 2007, for the award of service connection for PTSD. He contends that the proper effective date should be April 7, 2005, the date of a treatment report prepared by J. F. C., M. D. In that report, J. F. C., M. D. concluded that the Veteran's primary diagnosis was PTSD that was a result of his military stressors. (See VA Form 21-4138, Statement in Support of Claim, accepted as the Veteran's Notice of Disagreement and received by the RO in October 2009). Applicable law and VA regulations provide that the effective date for an award of service connection established on the basis of new and material evidence "received after final disallowance" shall be the date of receipt of the reopened claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Based upon a complete review of the evidence on file, and for reasons and bases expressed immediately below, the Board finds that the currently assigned effective date of September 11, 2007, is the earliest effective date assignable for service connection for PTSD as a matter of law. The Board initially recognizes the case of Clemons v. Shinseki, 23 Vet. App. 1 (2009), wherein the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and other information of record. As will be explained below, in previous and final decisions, the Board denied service connection for an acquired psychiatric disorder, to include PTSD. Nevertheless, as explained below, this does not support entitlement to an earlier effective date for service connection for PTSD. Historically, by an April 1981 decision, the Board denied service connection for an acquired psychiatric disorder, including schizophrenia, on the bases that a psychiatric disorder had not been manifested in service and that the Veteran's schizophrenia, a psychosis, had not been manifested to a compensable degree within the first year of service discharge. In an October 1985 decision, the Board determined that new and material evidence had not been received to reopen the previously denied clam for service connection for an acquired psychiatric disorder, to include schizophrenia. The April 1981 and October 1985 Board decisions are final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). In a May 2002 decision, the Board reopened the previously denied claim for service connection for an acquired psychiatric disorder, to include schizophrenia, and remanded the de novo claim to the RO for additional development. In a December 2005 decision, the Board once again denied service connection for the an acquired psychiatric disability, to include PTSD, and specifically considered the April 2005 treatment report that is the basis of appellant's claim for an earlier effective date for the grant of service connection for PTSD. The December 2005 Board decision is final. Id. The first request to reopen this claim was received by the RO on September 11, 2007. (See Veteran's spouse's statement to VA on behalf of the Veteran, received by the RO on September 11, 2007). In the appealed January 2008 rating decision, the RO granted service connection for PTSD, and properly assigned an effective date of September 11, 2007, the date it received the first claim to reopen service connection for PTSD that was received after the final December 2005 Board decision on that matter. See 38 U.S.C.A. § 5110(a) ; 38 C.F.R. § 3.400. The Veteran has argued that the proper effective date for the award of service connection should be April 7. 2005, the date of a treatment report, prepared by J. F. C., M. D., wherein he diagnosed the Veteran with a primary diagnosis of PTSD based on his military stressful events. This report was considered by the Board in its final December 2005 decision. (See December 2005 Board decision, page (pg.) 7)). As noted above, the December 2005 Board decision became final, and may not serve as a basis to establish an earlier effective date. See id. Given the final December 2005 Board decision, and the lack of communication from the Veteran between December 2005 and his spouse's statement to VA on his behalf as to his PTSD claim, received by the RO on September 11, 2007, the September 11, 2007, effective date is proper, and there is no legal basis to assign an earlier effective date, absent a claim of clear and unmistakable error (CUE) with respect to the Board's December 2005 decision. Therefore, the RO's assignment of an effective date of September 11, 2007, is correct, and there is currently no legal basis upon which to award an effective date prior to this date for the award of service connection for PTSD. See 38 C.F.R. § 3.400(q)(2), (r). Accordingly, the claim must be denied. ORDER Entitlement to an effective date prior to September 11, 2007, for an award of service connection for PTSD is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs