Citation Nr: 1311368	
Decision Date: 04/05/13    Archive Date: 04/19/13

DOCKET NO.  07-34 048	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to an effective date earlier than April 30, 2004, for the grant of service connection for posttraumatic stress disorder (PTSD), including on the basis of clear and unmistakable error (CUE) in a prior June 1995 rating decision.  

 
REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel


INTRODUCTION

The Veteran served on active duty from February 1975 to April 1977.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) granting service connection for PTSD with depressive and panic disorders and assigning an initial effective date of October 11, 2005.  In a subsequent September 2007 rating decision, however, an earlier effective date of April 30, 2004 was assigned.  This appeal is for an even earlier effective date.

While testifying in May 2008 at a hearing at the RO before a local Decision Review Officer, the Veteran asserted that her earlier April 1995 claim for non-service-connected pension benefits also should have been considered as a claim for service connection for PTSD.  She therefore argued that a June 1995 RO decision granting that pension claim involved CUE in failing to also consider her entitlement to service connection for PTSD.  The RO resultantly determined that her earlier effective date claim was "inextricably intertwined" with her CUE claim and, thus, adjudicated both claims in a June 2009 supplemental statement of the case (SSOC).  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (claims are "inextricably intertwined" when they are so closely tied together that a final decision concerning one cannot be rendered until a decision on the other).  See also Parker v. Brown, 7 Vet. App. 116 (1994).  These types of claims should be considered concurrently to avoid piecemeal adjudication of claims with common parameters.  See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) and Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (Where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together).



In May 2010, the Veteran testified at another hearing at the RO - this time, however, before a Veterans Law Judge of the Board (Travel Board hearing).

The Board subsequently issued a decision in August 2010 denying the Veteran's claim of entitlement to an effective date earlier than April 30, 2004, for the award of service connection for PTSD and, in the process, determining the prior June 1995 rating decision did not involve CUE.  She appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).  In an April 2012 memorandum decision, the Court VACATED the Board's August 2010 decision and REMANDED this claim for further proceedings consistent with the memorandum decision.  In particular, the Court determined the Board did not provide adequate reasons or bases determining that the prior April 1995 claim was for non-service connected pension only, failed to adequately explain why that 1995 claim did not include a pending unadjudicated claim for PTSD that would support assignment of an earlier effective date, failed to discuss conflicting information on the application form itself as to what the claim actually was for, and failed to alternatively consider entitlement to a retroactive payment for up to one year under 38 C.F.R. § 3.114(a), seeing as though this VA regulation is considered a liberalizing law as it added a diagnostic code for PTSD effective April 11, 1980.  See 45 Fed Reg. 26,326 (1980).  A "liberalizing law" is one that creates a new basis for entitlement to benefits.  See VAOPGCPREC 26-97 (July 16, 1997).

The Veterans Law Judge who presided over the Veteran's May 2010 Travel Board hearing is no longer employed by the Board, since having retired.  The law requires that the Veterans Law Judge conducting a hearing in an appeal participate in any Board decision made in that appeal.  38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. §§ 20.707, 20.717 (2012).  The Board therefore sent the Veteran and her attorney a letter in October 2012 asking them whether she wanted another hearing before a different Veterans Law Judge of the Board who would ultimately decide this appeal.  The Board also sent them another letter in October 2012 giving them 90 days to submit additional evidence and/or argument.  Her attorney responded in his November 2012 brief that the Veteran does not want another hearing and that, aside from the brief, she did not have any additional evidence to submit in support of her claim.  The attorney therefore indicated they were waiving the right to wait the 90 days allowing for submission of additional evidence and/or argument and wanted, instead, to proceed with another decision on the claim.


FINDINGS OF FACT

1.  The Veteran served on active duty in the military from February 1975 to April 1977 and filed her initial claim of entitlement to service connection for a psychiatric disorder ("nervous condition") in August 1977, so within one year of her discharge.  The RO denied her claim in October 1977, April 1978, and January 1980 rating decisions.  In response she started, but did not complete, the steps necessary to perfect her appeal of those earlier decisions denying her claim.

2.  Around that same time, effective April 11, 1980, VA adopted the PTSD nomenclature and resultantly added a diagnostic code specifically for this condition.  As a liberalizing law, it created a new basis of entitlement to benefits.

3.  It was not until many years later, however, on April 25, 1995, when the Veteran submitted a claim for non-service-connected pension benefits, although that claim, when construed liberally, was also a claim of entitlement to compensation, i.e., for service connection for PTSD specifically.

4.  Until April 25, 1995, there was no pending, unadjudicated claim or petition to reopen a claim for service connection for a psychiatric disorder of any sort.



CONCLUSIONS OF LAW

1.  Since not appealed, the October 1977, April 1978, and January 1980 rating decisions that denied service connection for a psychiatric disorder are final and binding based on the evidence then of record.  38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1979).  [38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012)].

2.  Resolving all reasonable doubt in the Veteran's favor, the criteria are met for an earlier effective date of April 25, 1995, though no earlier, for the grant of service connection for PTSD with depressive and panic disorders.  38 U.S.C.A. §§ 5103, 5103A, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151(a), 3.155, 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In deciding this claim, the Board will discuss the relevant law that it is required to apply.  This includes statutes published in Title 38 of the United States Code Annotated ("38 U.S.C.A."); regulations published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court, as noted by citations to "Fed. Cir.") and the U. S. Court of Appeals for Veterans Claims (Court or CAVC, as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

I.  The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

To this end, VA must apprise the Veteran of the information and evidence not of record that is necessary to substantiate the claim, including of whose specific responsibility, the Veteran's or VA's, it is for obtaining this supporting evidence.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

When the claim arose in the context of the Veteran trying to establish his/her entitlement to service connection for the claimed disability, then the VCAA notice must apprise him/her of all five elements of the claim:  (1) Veteran status; (2) existence of disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  

But if service connection is granted and, in response, the Veteran appeals a "downstream" issue such as the compensation level assigned for the disability or effective date, then VA does not have to provide additional VCAA notice concerning these downstream elements of the claim because the initial intended purpose of the notice has been served inasmuch as the claim as it arose in its initial context has been granted, so substantiated.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).

According to the holding in Goodwin and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the downstream disability rating and effective date elements of the claim, 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 this occurred in this particular instance.

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in an SOC or SSOC - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his/her claim, i.e., more than harmless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The Court has held that, in an earlier-effective-date claim, VA must apprise the Veteran that evidence of an earlier-filed claim that did not become final and binding, in the absence of an appeal, is needed to show entitlement to an earlier effective date.  See Huston v. Principi, 17 Vet. App. 195 (2003).  Here, the Veteran was informed of the relevant statutes and regulations pertaining to her claim for an earlier effective date in a letter dated in March 2006, which instructed her that effective date determinations are based on such things as "when we received your claim."  And, in any event, no VCAA notice is necessary regarding this earlier effective date claim, including to the extent premised on CUE in a prior decision, as the outcome of this claim depends entirely on documents that are already in the Veteran's claims files.  The Court has expressly held that the VCAA has no application to allegations of CUE as a matter of law, regardless of whether the Board or RO issued the earlier decision in question.  See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); Parker v. Principi, 15 Vet. App. 407 (2002).  The Court also has held that a Veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide VCAA notice of the laws and regulations governing effective dates if, based on the facts of the case, entitlement to an earlier effective date (or, here, an even earlier date than is being granted in this decision) is not shown as a matter of law.  See Nelson v. Principi, 18 Vet. App. 407, 410 (2004).

Moreover, as will be explained, since resolution of this claim ultimately turns on when the Veteran filed this claim, and more specifically a petition to reopen this claim, an examination and opinion - including a "retrospective" opinion, are not needed to fairly decide this claim.  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, 86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion regarding the status of a disability years, or even decades, prior).  Accordingly, the Board finds that no further notice or assistance is needed to meet the requirements of the VCAA.  See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001). 

Consider also that the Board is at least partly granting the claim, assigning an earlier effective date back to April 25, 1995, though not even earlier than that.  This, too, then, lessens the significance of any VCAA notice error, even assuming for the sake of argument that one has occurred.  38 C.F.R. § 20.1102 (2012) (harmless error).  Indeed, in the most recent November 2012 brief from the Veteran's attorney, he expressly indicated the Veteran waives any VCAA notice errors.


II.  Procedural History and Analysis

The Veteran contends that an effective date earlier than April 30, 2004, is warranted for the grant of service connection for her PTSD with depressive and panic disorders.  Specifically, through counsel, she believes the effective date instead should be in April 1995, if not even earlier, because she previously filed claims for this same mental illness.  See November 2012 written argument.  Essentially, she asserts her April 1995 claim for non-service-connected pension benefits should also be considered a claim for service-connected compensation benefits.

Her initial claim of entitlement to service connection for a psychiatric disorder, then claimed as "nervous/emotional problems," was received in August 1977, so within one year of her discharge from service in April 1977.  She underwent a VA psychiatric examination in September 1977.  At that time she reported emotional problems after having been raped on two occasions during her service.  The diagnosis was mixed-type of psychoneurosis with anxiety predominating.  PTSD was not added to the Diagnostic and Statistical Manual of Mental Disorders or the VA Schedule for Rating Disabilities until nearly 3 years later, in April 1980.  Regardless, the RO considered and denied that initial claim for service connection for a psychiatric disorder in October 1977.  The Veteran did not in response immediately file a notice of disagreement (NOD) to initiate an appeal of that decision denying her claim, but she did submit additional evidence within the next year in the form of lay statements and a performance evaluation report from her time in service.

Whenever the Board is making a finding or a conclusion involving the finality of a prior rating decision, including as it relates to claims to reopen and questions of timeliness of an NOD or appeal, the Board must consider whether 38 C.F.R. § 3.156(b) and (c) apply.  According to 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  Thus, VA must assess any evidence submitted during the relevant period (within a year of notice of a rating decision) and make a determination as to whether it constitutes new and material evidence relevant to a pending claim, regardless of whether the relevant submission might otherwise support a new claim.  See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).  Mere submission of additional evidence, however, does not extend the period for initiation of an appeal by submission of a timely NOD.  38 C.F.R. § 20.304 (2012).  But if new and material evidence is found during this period, the decision does not become final and binding.  Id.

Similarly, according to 38 C.F.R. § 3.156(c), the receipt or submission of service department records following a decision, if not considered in the decision, will negate the finality of the decision or need to submit new and material evidence to reopen the claim.

Here, though, despite the submission of this additional evidence, the RO readjudicated and again denied the claim in April 1978.  The notification letter advised the Veteran that if she wanted to reopen her claim she should submit new evidence showing her psychiatric disorder was the result of her military service.  She then in response filed an NOD in February 1979, accompanied by still additional lay statements, articles concerning Rape/Sexual Assault, a May 1979 VA medical statement noting her mental history and treatment to date, and an October 1979 VA examination report.  Ultimately, however, the RO again denied her claim in January 1980.  And although provided an SOC concerning her claim, she did not then file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect her appeal of that initial claim to the Board.  Consequently, that January 1980 rating decision became final and binding on her based on the evidence then of record.  38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1979).  [38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012)].

Absent perfection of a timely appeal, the Board has the discretionary authority not to consider a claim.  The Court has held that the formality of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme requiring the filing of both a timely NOD and timely formal appeal (VA Form 9 or equivalent statement).  When an Appellant fails to file a timely appeal, and does not request an extension of time in writing before the expiration of time for the filing of the substantive appeal, he/she is statutorily barred from appealing the decision of the agency of original jurisdiction (AOJ).  Roy v. Brown, 5 Vet. App. 554, 556 (1993).  Under 38 U.S.C.A. § 7105(d)(3), questions as to timeliness or adequacy of response shall be determined by the Board.  See also Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a timely NOD, SOC, and timely VA Form 9 [substantive appeal], the Board is not required, and in fact, has no authority, to decide the claim).  And see Bowles v. Russell, 551 U.S. 205 (2007) (holding that jurisdictional time periods for taking an appeal may not be extended for equitable reasons).  But see, too, Percy v. Shinseki, 23 Vet. App. 37 (2009) (indicating 38 U.S.C. § 7105(d)(3) does not operate as a mandatory jurisdictional bar precluding the Board from considering an appeal where the substantive appeal is untimely, rather, in light of the use of the term "may" in this statute, just gives the Board this discretionary authority not to).

Here, the Board is not exercising its discretionary authority to accept jurisdiction over that earlier-filed claim since the Veteran was appropriately notified of the time limit for perfecting her appeal to the Board of those earlier decisions denying her claim and provided explanation as to why she had not yet perfected a timely appeal of that earlier-filed claim.

The law also provides however that an earlier effective date may be assigned if a grant is based upon a liberalizing law or VA issue.  38 U.S.C.A. § 5110(g).  And, here, meanwhile, as of April 11, 1980, VA began recognizing the PTSD nomenclature and accordingly added a diagnostic code to the Rating Schedule specifically for this condition.  Under 38 C.F.R. § 3.114(a), that was considered a "liberalizing law" since creating a new basis of entitlement to benefits.  45 Fed Reg. 26,326 (1980); VAOPGCPREC 26-97 (July 16, 1997); Green v. Brown, 10 Vet. App. 111 (1997).  With regards to PTSD claims, VAOPGCPREC 26-97 held that "an effective date prior to the date of claim cannot be assigned under section 3.114 unless the claimant met all eligibility criteria for the liberalized benefit on April 11, 1980, the effective date of the regulatory amendment adding the diagnostic code for PTSD, and such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement."  See McKay v. Brown, 9 Vet. App. 183, 186, 187-88 (1996) (purpose of one-year grace period is to give claimants time to react after a change in the law, but the requirement of continuous disability does not apply when the liberalizing law has a retroactive effective date); Viglas v. Brown, 7 Vet. App. 1, 5 (1994) (section 5110(g) was intended to limit maximum amount of retroactive benefits recoverable to one year prior to the filing of an application).  In short, then, the pertinent laws and regulations permit an effective date one year earlier than the date of claim, but only if it can be demonstrated the Veteran met all eligibility criteria on April 11, 1980, for PTSD.

The Court's memorandum decision suggests this liberalizing law may apply since the evidence of record seems to indicate the Veteran has been experiencing the same symptomatology since at least 1977 as a result of her rapes in service.  The Court cited her hearing testimony to this effect and her assertions that she had been continuously treated for PTSD with medications and psychotherapy in the Military Sexual Trauma (MST) and PCT clinics, and her claim that her symptoms all had begun immediately after the rape in service and had continued on to this day.  Accordingly, added the Court, the record seems to establish that (1) she already had developed PTSD by April 11, 1980, and that (2) her disability continued up to the date that her claim for compensation was filed, whether her "claim for compensation" is considered to be her 1995 application for benefits or, instead, her more recent 2004 application for benefits.  See G.C. Prec. 26-97.

Even the brief the Veteran's attorney filed on appeal to the Court seemingly acknowledges the Veteran did not receive a definitive diagnosis of PTSD until October 2005, when it was related to the sexual assaults she had experienced in service.  But the attorney cites to a rather recently holding of the Court in DeLisio v. Shinseki, 2011 WL 3691857 at *9 (Vet. App. August 24, 2011) for the proposition that "[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition."  Hence, the attorney argues, because the Veteran filed a claim for service connection for a psychiatric disorder in 1977 and suffered from manifestations of the condition later diagnosed as PTSD up until receiving her award of service connection for PTSD, she is entitled to an earlier effective date for service connection is accordance with the VA regulation, 38 C.F.R. § 3.114(a)(3).

According to 38 C.F.R. § 3.304(f), however, the granting of service connection for PTSD is predicated on, so requires, a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a), not just the mere manifestation of symptoms even if later determined to be associated with this eventual diagnosis.  And although there need not be a "clear" diagnosis, there at least has to be a definitive diagnosis according to 38 C.F.R. § 4.125(a), which simply mandates that, for VA compensation purposes, all diagnoses must conform to or be in accordance with the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM).  38 C.F.R. § 3.304(f).  In Cohen v. Brown, 10 Vet. App. 128, 139-42 (1997), the Court held that mental health care professionals are presumed to know and take into account the DSM criteria in diagnosing PTSD.  Thus, once a diagnosis of PTSD is established (whether or not it appears to conform to the DSM) and a nexus linking current symptomatology to a claimed in-service stressor, the Board may only apply the DSM as a basis for returning a VA examination for clarification.  Id. (citing 38 C.F.R. § 4.125(a)).  The Board cannot use the DSM as a basis for rejecting favorable medical evidence regarding the adequacy of the Veteran's symptomatology.  Id.  That is to say, a diagnosis of PTSD is presumably in accordance with the DSM criteria, both insofar as the adequacy and sufficiency of the stressor claimed.  But even accepting this as true, there still has to be the required underlying diagnosis, which in this instance there apparently was not, at least not as of the liberalizing change in law that took effect on April 11, 1980.

Under 38 C.F.R. § 3.155(a), the Veteran or a representative of the Veteran can file an informal claim by communicating an intent to apply for one or more VA benefits.  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.

Also, according to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as an informal claim for increased benefits.  The date on the VA outpatient or hospital examination will be accepted as the date of informal claim.  38 C.F.R. § 3.157(b).

But as reiterated in Echols v. Shinseki, No. 11-2636 (March 15, 2013), VA examination or hospitalization reports constitute an informal claim for an increased rating when the reports relate to a disability for which service connection already has been established.  See also Massie v. Shinseki, 25 Vet. App. 123, 132 (2011) (§ 3.157(b)(1) is applicable only "where the Veteran's disability is already service connected and the findings of a VA report of examination or hospitalization demonstrate that the disability has worsened").  This regulation therefore only serves to establish an increased-rating claim, not instead a claim of entitlement to service connection or even to reopen a previously denied claim.  See Crawford v. Brown, 5 Vet. App. 33, 35 (1993).

In a March 1995 treatment note, so well before the definitive diagnosis of PTSD in October 2005 and attribution of that diagnosis to MST in service, there is reference to a history of PTSD with depression, but notably it was said to be related instead to non-military sexual trauma.  In an April 1995 treatment note, the Veteran explained that her depressive symptoms had begun after a traumatic experience in 1993, so well after the rapes during her service.  Thus, although these records certainly reference a number of psychiatric-related issues, they do not relate her PTSD or any other psychiatric disorder to events that had occurred during her military service or even contain complaints that her disorders were incurred in service.  Despite the liberalizing change in law in April 1980 regarding claims for PTSD, in particular, there is no enforceable obligation that the Secretary of VA in turn inform Veterans with service-connected disabilities that additional benefits resultantly might be warranted.  See Rodriguez v. West, 189 F.3d 1351, 1355 (Fed.Cir.1999) (holding that 38 U.S.C. §§ 5102 and 7722(d) are "hortatory" provisions rather than "enforceable legal obligations upon the Secretary," and that the Secretary's alleged failure to provide assistance in filing a claim does not alter an effective-date determination).

Moreover, as held in Lynch v. Gober, 11 Vet. App. 22 (1997), the constructive-notice doctrine espoused in Bell v. Derwinski, 2 Vet. App. 611 (1992), indicating VA has constructive, even if not actual, knowledge of VA-generated documents not actually before the RO is not retroactive to VA adjudications occurring before Bell was handed down in 1992.

It was not until April 25, 1995, that the RO received the Veteran's next Application for Compensation and/or Pension on a VA Form 21-526.  Accompanied with this application were her VA mental health records noting a history of "PTSD R/T non-military sexual trauma with depression."

After filing that April 1995 claim, the Veteran's representative submitted additional evidence in support of the claim.  The evidence was largely duplicative of that already of record.  It included a March 1995 statement by the Veteran indicating she had become extremely depressed, anxious and began having panic attacks during an abusive relationship in August 1993.  The file also contained private treatment records from AGH Counseling Centers, in which a psychologist diagnosed the Veteran with major depression and PTSD.

Following receipt of the form, the RO granted entitlement to non-service-connected pension benefits in a June 1995 rating decision, with these benefits retroactively effective from April 25, 1995, the date of receipt of that most recent claim.  The RO, in essence, ultimately treated the April 1995 application as a petition to reopen the claim.  The rating decision reflects that the RO found, for purposes of non-service-connected pension entitlement only, that the Veteran had major depression without psychotic features and PTSD relating to non-military sexual trauma.  A claim for pension is predicated on the notion that the Veteran has permanent and total disability, but unrelated to military service, whereas a claim for compensation is predicated on the notion that the disability claimed is related to the Veteran's military service.


In April 1998, the Veteran submitted a letter requesting additional time to respond to a request for income verification regarding her receipt of non-service-connected pension benefits.  In it, she stated that she relies on her "disability pension" to pay for basic necessities. 

In June 2001, she filed a claim for service connection for sarcoidosis and asthma.

Thereafter, in August 2004, VA received correspondence from the Veteran's representative referencing a claim of entitlement to service connection for PTSD.  In response, the Veteran was provided a VA compensation examination in October 2005.  She told the examiner that she had been raped in Okinawa, Japan, during her military service.  After interviewing her and reviewing her claims file, the VA examiner diagnosed PTSD secondary to two sexual assaults on active duty; depression, and a panic disorder.

In a subsequent March 2006 rating decision, the RO resultantly granted service connection for PTSD with depressive and panic disorders and assigned a 70 percent rating for this disability, initially only retroactively effective from October 11, 2005.  But in a more recent September 2007 rating decision, the RO increased the disability rating for the PTSD to 100 percent with an earlier effective date of April 30, 2004.  This appeal for an even earlier effective date ensued.

As already discussed, she initially filed a claim of entitlement to service connection for what were characterized as emotional/nervous problems in 1977, but the RO considered and denied that earlier claim in October 1977, April 1978, and again in January 1980.  And although she started the process of appealing those earlier decisions by filing a timely NOD, she did not complete the steps necessary to perfect her claim of that initial claim by also, after receiving an SOC, filing a timely substantive appeal (VA Form 9 or equivalent statement).  Hence, those earlier decisions are final and binding on her based on the evidence then of record.  38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1979).  [38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2012)].
Finality determinations contained within the prior decisions that denied service connection for psychiatric disability can only be collaterally attacked and addressed through a claim of CUE in those earlier decisions.  See 38 U.S.C.A. §§ 5109A, 7111 (West 2002); 38 C.F.R. §§ 3.104, 3.105, 20.1400 (2012).  For the Board to address such finality determinations without a claim of CUE before it would be ultra vires (an act beyond the legal authority of the doer).  See Juarez v. Peake, 21 Vet. App. 232, 241 (2007).  See also Williams v. Peake, 521 F.3d 1348 (Fed. Cir. 2008) (The pending status of a claim is terminated with a later adjudication of an identical claim.).  All of this is to say there are no 
free-standing earlier effective date claims; such a claim or request is permitted only in two circumstances:  (1) on appeal from an initial rating decision or (2) in a CUE claim where the original rating decision is final and binding.  Rudd v. Nicholson, 20 Vet. App. 296 (2006).

The Veteran and her attorney have not alleged CUE in the earlier final and binding RO decisions issued in October 1977, April 1978, and January 1980, only instead in the more recent June 1995 decision in failing to consider her intervening April 1995 claim as both for VA pension and compensation benefits, not just for pension.  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).

Therefore, any award based on this subsequently filed application for benefits can be made effective no earlier than the date of receipt of this new application.  See 38 U.S.C.A. § 5110(a); 38 C.F.R. §§3.400(q)(2), 3.400(r).  The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim."  In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim.  Flash v. Brown, 8 Vet. App. 332, 340 (1995).  Therefore, since there only remains this allegation of CUE as concerning the 1995 claim and decision addressing that claim, that is the earliest possible effective date that may be assigned in this instance.

The proper effective date for new and material evidence other than service treatment records received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r).

The Court has 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.  See 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 therefore' means the application which resulted in the award of disability compensation that it to be assigned an effective dated 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"); 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").

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).  And 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).

That said, the Court also has held that a claimant's identification of the benefit sought does not require any technical precision.  See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary who know the provisions of Title 38 and can evaluate whether there is a 

potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.").  Here, though, when filing her 1995 claim, this particular Veteran was represented by a Veteran's Service Organization (VSO) - namely, the Disabled American Veterans (DAV).  So he was not a pro se Veteran, rather, had the benefit of this representation.  See VA Form 21-22 in years past designating the DAV as her representative before VA.  And while the Court has recognized differences in some contexts in the treatment of cases by VA and the Court when the claimant is represented by counsel (i.e., an attorney) versus a VSO, there has not been any such distinction when a claimant is proceeding with a claim pro se versus being represented by a VSO.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  See also Comer v. Peake, No. 2008-7013 (Jan. 16, 2009).

Nevertheless, a claimant may satisfy the requirement of filing a claim for a particular disability by referring to a body part or system that is disabled or by describing symptoms of the disability.  Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim).

In Lalonde v. West, 12 Vet. App. 377 (1999), the Court held that the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but on the date that the application upon which service connection was eventually awarded was filed with VA.  The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received.  And "date of receipt" means the date on which a claim, information or evidence was received by VA.  38 C.F.R. § 3.1(r).


The Federal Circuit Court has held that the mere mention of a condition in a medical record, alone, cannot be construed as a claim for service connection.  See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. §§ 3.155, 3.157.  Rather, according to the Federal Circuit Court, "a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability."  MacPhee at 1327 (bold type added for emphasis);

This notwithstanding, here, the record shows that VA received the Veteran's VA Form 21-526, Application for VA Compensation and/or Pension, on April 25, 1995.  According to 38 C.F.R. § 3.151, a claim for pension also may be considered a claim for compensation, although this treatment is discretionary.  See Stewart v. Brown, 10 Vet. App. 15, 18 (1997).  On that application she completed the sections for pension in their entirety, whereas she only completed some, not all, of those concerning a claim for compensation.  The application was accompanied by a statement from her stating that she had requested DAV to represent her in connection with her non-service-connected pension benefits claim.  Additionally, on a handwritten note seen on a June 1995 private treatment note, an RO representative wrote that, per a DAV representative, the Veteran was not claiming service connection and was only claiming non-service-connected pension.  In it prior August 2010 decision, the Board concluded the Veteran's claim was clearly for pension and pension only.  However, in its April 2012 memorandum decision, the Court determined it is far from clear that the Veteran's April 1995 claim constituted only a claim for pension.

Thus, the dispositive issue is whether she intended to limit her April 1995 claim to pension only.  As explained, VA adjudicators are not necessarily required to treat each and every pension claim as also being a compensation claim.  Rather, VA has to exercise discretion under 38 C.F.R. § 3.151(a) in accordance with the contents of the application and the evidence in support of it.  Stewart, 10 Vet. App. at 18; see also Willis v. Brown, 6 Vet. App. 433, 435 (1994) (the operative word "may," in the regulation, clearly indicates discretion).  In Stewart, the Court considered whether the appellant had submitted information indicating a belief in entitlement to service connection for PTSD.
Any communication or action indicating intent to apply for VA benefits from a claimant or representative may be considered an informal claim.  While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they 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).  See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000).  The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  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(a).

In Stewart the Court examined whether there was clear evidence of an intent to file a claim for service connection for PTSD.  The Court held that a claim for nonservice-connected pension may be construed as a claim for service connection disability compensation, depending on the evidence submitted in or with the application.  Stewart v. Brown, 10 Vet. App. 15 (1997). 

Here, the Board finds that, when read sympathetically, the Veteran's statements on the form filed in April 1995 can be viewed as raising a claim for direct service connection for a psychiatric disorder.  Her April 1995 application reflects that, in describing the nature and history of her disability, she referenced "major depression/PTSD/panic attacks."   Also, in addition to completing the sections for pension entirely, she completed portions of the form for compensation.  Specifically, a notation on VA Form 21-526 reads "Skip Items 19, 20, and 21 IF YOU ARE NOT CLAIMING COMPENSATION FOR A SERVICE-CONNECTED DISABILITY."  She skipped item 19, but completed items 20 and 21.  Also on the form, she indicated that she was receiving treatment for major depression, PTSD, and panic attacks at the VA Medical Center in Dallas.  

She stated further that she had been seeing a doctor for those conditions since August 1993 and was totally disabled and had not worked since then.  So that application is reasonably construed as "evidencing a belief in entitlement" to compensation for a psychiatric disorder, including PTSD, when reading this document sympathetically.  38 C.F.R. § 3.1(p).

No other correspondence had been received from her indicating intent to apply for service connection for a psychiatric disorder, including PTSD, since the last prior final and binding denial of her claim in January 1980.  It instead was only as of April 25, 1995, when one could consider that she filed a petition to reopen this previously denied, unappealed, claim.  Thus, there is no pending unadjudicated claim to reopen prior to April 25, 1995, in turn meaning the proper date of the claim to reopen is April 25, 1995.

Thus, in conclusion, the Board finds that the evidence supports an earlier effective date of April 25, 1995, though no earlier, for the grant of service connection for the PTSD with depressive and panic disorders since, given a liberal construction, that was when the Veteran sought to reopen her claim for this condition.  Since there is no prior evidence of either a formal or informal unadjudicated claim, that is, prior to April 25, 1995, the preponderance of the evidence is against assigning an effective date earlier than April 25, 1995, for this disability.


ORDER

An earlier effective date of April 25, 1995, but no earlier, is granted for the award of service connection for PTSD with depressive and panic disorders.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs