Citation Nr: 1319867 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-37 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date prior to April 30, 2007, for the grant of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1981 to February 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that granted service connection for PTSD and assigned an initial evaluation of 100 percent effective April 30, 2007. In November 2011, before certification of this appeal to the Board, the Veteran withdrew the appeal of his claims of entitlement to service connection for bilateral hearing loss, service connection for tinnitus, non-service-connected pension prior to August 9, 2011, and Dependents' Educational Assistance prior to August 9, 2011. Thus, these issues are not before the Board at this time. In January 2012, the Veteran submitted evidence to the Board without a waiver of review of this evidence in the first instance by the agency of original jurisdiction (AOJ). The Veteran is not prejudiced by the Board's review of the evidence in the first instance because the evidence is duplicative of information already contained in the claims file. Accordingly, a remand to the AOJ for initial review of the newly-received statement is not required. See Sabonis v. Brown, 6 Vet. App. 426, 30 (1994) (remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided.) FINDINGS OF FACT 1. An unappealed rating decision issued on June 16, 1996 denied service connection for PTSD. 2. On April 30, 2007, the Veteran filed a claim for service connection for an acquired psychiatric disorder (identified as depression), which he later amended to include PTSD. 3. By rating decision dated June 2009, the RO granted service connection for PTSD with an effective date of April 30, 2007, which is the date of receipt of the Veteran's petition to reopen his claim for service connection for that disability. 4. The record contains no evidence between June 16, 1997 and April 30, 2007 that may be reasonably construed as a pending claim for service connection for PTSD or any other acquired psychiatric disorder. CONCLUSION OF LAW The criteria for an effective date earlier than April 30, 2007, for the award of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The VCAA describes VA's 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under 38 U.S.C.A. § 5102 VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. VA must also notify the claimant of the information and evidence needed to substantiate and complete a claim, that is, existence of a current disability, the degree of disability, and the effective date of any disability benefits. The veteran must also be notified of the specific evidence he is to provide and what evidence VA will attempt to obtain. VA additionally has a duty to assist claimants in obtaining evidence needed to substantiate a claim. This duty includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations. 38 U.S.C.A. § 5103A (West 2002). In the current appeal there is no issue under 38 U.S.C.A. § 5101 as to providing an appropriate application form or completeness of the application. Once service connection is granted, the claim is substantiated and further notice as to the effective date and rating element is not required. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Therefore, as entitlement to service connection for PTSD has been granted and the Veteran is seeking an earlier effective date for the award of this disability, further notice regarding the effective date is not required. Id; see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In an April 2007 letter, the Veteran was informed of the evidence necessary to establish service connection for PTSD. At that time, he was also informed of the evidence that he should provide and the evidence that VA would obtain on his behalf. The Veteran was further informed of the method in which VA assigns disability ratings and effective dates. Accordingly, VA has satisfied its duty to notify under the VCAA. With respect to the duty to assist, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes statements from the Veteran, service treatment records, and VA and private treatment records. The Veteran has not indicated that relevant evidence exists that has not been associated with the claims folder. All appropriate due process concerns have been satisfied. 38 C.F.R. § 3.103 (2012). The Veteran has been afforded the opportunity to present evidence and argument in support of his claim, and he has retained the services of a representative. The Veteran declined the opportunity to present testimony at a personal hearing. Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Earlier Effective Date Generally, the effective date of an award of disability compensation is the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the effective date is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b) (West 2002); 38 C.F.R. § 3.400(b)(2) (2012). With regard to reopened claims, when a claim to reopen is successful and the benefit sought is awarded upon readjudication, the proper effective date is the date of the claim to reopen. Flash v. Brown, 8 Vet. App. 332, 340 (1995); see also Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the effective-date statute, 38 U.S.C.A. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monetary benefits no earlier than the date that the claim for reopening was filed."). The word "claim" includes 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) (2012); Brannon v. West, 12 Vet. App. 32, 34-35 (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 laws administered by VA from a veteran may be considered to be an informal claim. Such an informal claim must identify the benefits 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. 38 C.F.R. § 3.155(a) (2012). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In this regard, VA may not pay a benefit before a claim is made. 38 U.S.C.A. § 5101 (West 2002); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (stating that "[38 U.S.C.A. §] 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to . . . be paid under the laws administered by the Secretary.") The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377, 382 (1999); Brannon v. West, 12 Vet. App. 32, 35 (1998). More specifically, a medical examination report is only considered an informal claim for an increase in disability benefits if service connection has already been established for the disability. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. § 3.157(b)(1) (medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established"). Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. Crawford v. Brown, 5 Vet. App. 33, 35 (1995); KL v. Brown, 5 Vet. App. 205, 208 (1993). Turning to the facts in the instant case, the Veteran submitted a claim for service connection for PTSD in October 1995. A June 1996 rating decision denied the Veteran's claim for service connection for PTSD. Notice of the decision was provided to the Veteran on June 16, 1996. He did not appeal this decision, nor did he submit any additional evidence within a year of that decision. 38 C.F.R. § 3.156(b). Thus, that decision became final one year later and represents a final denial of the claim. 38 C.F.R. § 3.104 (1995). No further communication was received in any way relating to a claim for service connection for PTSD until April 30, 2007, which is the date the Veteran filed a claim of entitlement to service connection for depression. In June 2007, the Veteran amended his claim for service connection to add a claim of service connection for PTSD. In June 2009, the RO reopened the Veteran's claim of entitlement to service connection for PTSD and granted a 100 percent disability evaluation for PTSD as of April 30, 2007. Applying the law to the facts of this case, the Board finds that there is no basis for assignment of an effective date before April 30, 2007. Following the June 1996 denial of service connection for PTSD, the record is completely negative for any communication or action before April 30, 2007 indicating an intent to reopen the claim for service connection for PTSD. The Veteran has argued, for example in January 2012, that he did not "all of a sudden" get PTSD, and that his medical records indicate that he was diagnosed with PTSD before April 30, 2007. As noted above, however, the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon, supra. Indeed, there is nothing in the medical or other evidence of record prior to April 30, 2007 that may be reasonably construed as a claim on the part of the Veteran, or that reflects his intent to apply, for service connection PTSD between June 1997 and April 2007. The law is clear that no benefit may be paid before a claim is made. 38 U.S.C.A. § 5101 (West 2002). Therefore, since the Veteran's claim to reopen a claim for service connection for PTSD was received more than one year after his separation from military service, the effective date of the award may be no earlier than the date of receipt of the claim. Accordingly, since there is no evidence that shows a claim to reopen his claim for service connection for PTSD prior to April 30, 2007, the claim is denied. Consideration has been given to the Veteran's assertion that he did not receive notice of the June 1996 rating decision that denied service connection for PTSD. He says he moved from Louisiana to Florida in 1996. He says he advised VA of his change of address but that he suspects that VA failed to mail the notice to his correct/updated mailing address. He argues that he would have initiated an appeal had he received notice of the decision. The Court has applied a presumption of regularity to all manner of VA processes and procedures official acts, and, "in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15(1926)); see also Thompson v. Brown, 8 Vet. App. 169, 177-178 (1995) (applying the presumption of regularity to notice of a Board decision). Clear evidence is required to rebut the presumption of regularity. See id; see also Baldwin v. Brown, 13 Vet. App. 1, 6 (1999), Mindenhall v. Brown, 7 Vet. App. 271 (1994). In reviewing the evidence of record, the Board finds that the presumption of regularity has not been rebutted. There is no evidence showing communication from the Veteran to VA pertaining to a change in mailing address. Had the Veteran supplied such notice from the Veteran that he had moved in 1996, a record of the correspondence would be included in the claim file. VA would have also taken the appropriate action to provide him notice of adverse decision. Put another way, had the Veteran notified VA that his mailing address had changed, there would be some record of this communication. VA properly sent notice of the June 1996 rating decision to the mailing address of record. ORDER An effective date prior to April 30, 2007, for the grant of service connection for PTSD is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs