Citation Nr: 1303247 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-23 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an earlier effective date prior to November 15, 2002, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Virginia Girard-Brady, Esq. ATTORNEY FOR THE BOARD H.J. Baucom, Associate Counsel INTRODUCTION The Veteran had active service from April 1966 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in North Little Rock, Arkansas, which granted service connection for PTSD, effective November 15, 2002. FINDINGS OF FACT 1. The Veteran's claim of service connection for a psychiatric disorder, variously claimed, was last denied in December 1999. 2. The earliest document in the claims file that may be accepted as a claim of service connection for PTSD after December 1999 was received at the RO on November 15, 2002. 3. Additional service personnel records were added to the record in November 2003. CONCLUSION OF LAW The criteria for the assignment of an effective date prior to November 15, 2002, for the grant of service connection for PTSD are not met. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). This appeal arises from the Veteran's disagreement with the effective date of the benefit assigned following the grant of service connection for PTSD. 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). No additional discussion of the duty to notify is therefore required. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board has reviewed the Veteran's Virtual VA file. The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. Records from the Social Security Administration have not been obtained, but are not relevant to the issue decided here. 38 C.F.R. § 3.159 (c)(2). Similarly, VA examinations of record are not relevant to the issue on appeal; it is the dates related to evidence of record, and not the content, which are germane here. The Board also notes that it appears that in April 2003 the claims folder was rebuilt. There is no indication, nor any allegations, that anything is missing from the claims file. All the documents in the claims file prior to that date are originals. Under the presumption of regularity, that government officials properly discharged their official duties, the Board assumes that the RO rebuilt it accurately. Effective Date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after 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. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A "claim" is 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. See 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, 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 veteran, 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 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. The Veteran contends that he is entitled to an earlier effective date because there was a previous pending claim that the RO failed to develop and adjudicate. In a March 2011 statement, the Veteran's representative contends that he filed a claim for service connection for a psychiatric condition in May 1977 which was denied in an October 1988 rating decision and that in May 1989, within a year of the rating decision, he filed a statement which should have been construed as notice of disagreement. Thus, the claim was pending since May 1977. A review of the record reveals a complicated procedural history. In a June 1975 rating decision, the RO denied a claim of service connection for a nervous condition. That decision was not appealed and became final. In May 1977, the Veteran claimed to have had a nervous breakdown in service. In May 1986, he submitted a claim of service connection for "nerves." In an October 1988 rating decision, the RO declined to reopen claims of service connection for back and neck disabilities and denied a claim for nonservice-connected pension benefits. The Veteran was provided notice of that decision and his appellate rights in a letter dated October 19, 1988. In a May 1989 statement, the Veteran again claimed having had a nervous breakdown in service. In a November 1989 decision, the RO denied the claim of service connection for a "nerve" condition. Notice of that decision and appellate rights was provided to the Veteran in a letter dated November 1, 1989. The decision was not appealed and became final. In May 1999, the Veteran submitted another claim for compensation for various disabilities, including nerve problems. In a December 1999 rating decision, notice of which was provided to the Veteran that same month, the RO declined to reopen the claim of service connection for a nervous condition. The decision was not appealed and became final. This was the last final decision. In a statement date-stamped as being received at the RO on November 15, 2002, the Veteran filed a claim for service connection for a mental condition with symptoms of depression, paranoia and anxiety. In November 2003, the Veteran's service personnel records were associated with the claims folder. In a January 2004 rating decision, the RO denied a claim of service connection for a mental condition with symptoms of depression, paranoia, anxiety and suicidal intentions. A September 2004 rating decision denied service connection for PTSD. In November 2004, the Veteran's then-representative submitted separate notices of disagreement addressing the January and September 2004 rating decisions. The Veteran perfected an appeal to the Board. Although the Veteran's November 2002 claim referred to a "mental condition," the Board characterized the claim as a request to reopen the claim of service connection for a nervous condition, but a new claim of service connection for PTSD. See Boggs v. Peake, 520 F.3e 1330 (Fed. Cir. 2008) ("[C]laims based on separate and distinctly diagnosed diseases or injuries must be considered separate and distinct claims."); Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a prior, final decision on one diagnosis justifies separating new diagnoses into separate claims). In December 2007, the Board remanded the issues of service connection for PTSD and whether new and material evidence had been submitted to reopen a claim for service connection for a nervous condition. As new and material evidence consisting of the Veteran's service personnel records was added to the record in November 2003, the claim of service connection for a nervous condition should have been reconsidered on the merits. See 38 C.F.R. § 3.156(c) (2006); 38 C.F.R. § 3.156(c) (2012). In a December 2008 rating decision, the RO granted service connection for PTSD. The Veteran's argument for an earlier effective date is premised on the assertion that the May 1989 statement should have been construed as a notice of disagreement with an October 1988 rating decision and thus has been pending since the date of the claim decided in the October 1988 rating decision. However, as detailed above, the October 1988 decision denied claim of service connection for back and neck disabilities and for nonservice-connected pension benefits. A claim for a nervous condition was not adjudicated at that time. Rather, it appears that the RO construed the May 1989 statement as a claim for service connection for a nervous condition and denied the claim in a November 1989 rating decision. The Veteran did not appeal that decision and it is final. The Board notes that the record does include claims for service connection submitted in May 1977 and May 1986 that do not appear to have been adjudicated until the November 1989 rating decision that was premised on a May 1989 claim. Although the November 1989 rating decision did not explicitly address the 1977 and 1986 claims, "a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if the [VA] did not expressly address that claim in its decision." Adams v. Shinseki, 568 F.3d 956, 961 (Fed.Cir.2009). This "implicit denial" rule will result in the termination of the pending status of a formal or informal claim. Munro v. Shinseki, 616 F.3d 1293 (Fed. Cir. 2010). For an "implicit denial" of an unadjudicated claim, the issue must be closely related to the adjudicated issue. See Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). In this case, the Board finds that the adjudicated claim of service connection for a nervous condition and the claims of service connection for nervous breakdown and "nerves" are closely related since each may represent a nervous condition as generally claimed by the Veteran. In the present case, the Board finds that the November 1989 rating decision and the notice letter provided notice sufficient enough for the Veteran to know that service connection for a psychiatric disorder including "nerves" or a nervous breakdown had been denied. Thus, the 1977 and 1986 claims were implicitly denied. The Veteran had the opportunity to appeal that rating decision and express his disagreement with how the RO characterized his claimed psychiatric disorder. The Veteran did not respond or provide other evidence to support his claim. There is no evidence of a timely appeal from the November 1989 determination. Thus, the rating actions from which an appeal is not perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The next correspondence from the Veteran was in May 1999 and the RO declined to reopen the claim for a "nervous condition." in December 1999. Again, the Veteran was provided notice of that decision, but did not appeal. That decision is final. When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file, after the last final disallowance of the claim, which could be interpreted to be a formal or informal claim for benefits. See Lalonde v. West, 12 Vet. App. 377, 380-381 (1999). The Veteran's next communication following the December 1999 final decision was the claim received on November 15, 2002, in which the Veteran asserted his mental condition is "service-connected." After development and an appeal to the Board, the claim of service connection for PTSD was granted, effective November 15, 2002. There were no claims pending prior to November 15, 2002. The Board has also considered whether the receipt of the service personnel records in November 2003 would affect the effective date. A grant of service connection made based all or in part on the new service records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156(c). The previously decided claim was received in May 1999; the most recent claim was received in November 2002. Thus, November 2002 is the earliest possible effective date. Therefore, under the laws and regulations pertaining to effective dates, the November 15, 2002 date of the application to reopen that was granted is the appropriate effective date for the grant of entitlement to service connection for PTSD in this case. The preponderance of the evidence is therefore against a claim for entitlement to an earlier effective date based on these laws and regulations and the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an earlier effective date prior to November 15, 2002 for the grant of service connection for PTSD is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs