Citation Nr: 1324588 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 09-24 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a rating in excess of 30 percent prior to February 8, 2013, and a rating in excess of 70 percent on and after February 8, 2013, for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date prior to March 23, 2009, for the grant of service connection for PTSD. 3. Entitlement to an effective date prior to May 26, 2010, for the grant of service connection for tinnitus. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disorder, to include tinea pedis and acne (now claimed as a rash and nails falling off of toes/feet), including as secondary to exposure to herbicides. 5. Entitlement to service connection for a low back disability. 6. Entitlement to service connection for hypertension. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from June 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of October 2008, July 2009, September 2010, and April 2011 rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) located in San Diego, California. In the April 2011 rating action, the RO denied the Veteran's claim for a rating in excess of 30 percent for his service-connected PTSD. The Veteran subsequently filed a timely appeal. In an April 2013 rating action, the RO increased the disability rating for the Veteran's PTSD from 30 percent to 70 percent disabling, effective from February 8, 2013, the day of a VA examination which showed an increase in the severity of the Veteran's PTSD. Thus, the issue is as styled on the title page of this decision. See Hart v. Mayfield, 21 Vet. App. 505, 509-10 (2007). Although the Veteran initially had requested a Travel Board hearing in his June 2010 substantive appeal, he withdrew that request in September 2011. See 38 C.F.R. § 20.702(e) (2012). In a September 2010 rating action, the RO granted service connection for bilateral hearing loss and assigned a noncompensable rating effective from May 26, 2010. The Veteran filed a notice of disagreement (NOD) in May 2011 and a statement of the case (SOC) was issued on April 2, 2012. There is no indication from the information of record that the Veteran filed a timely substantive appeal (VA Form 9). Although he did file two separate VA Form 9's on April 30, 2012, the forms were pertinent to other claims and were not pertinent to his claim for an initial (compensable) rating for bilateral hearing loss. Accordingly, this issue is not before the Board for appellate consideration. The Veteran is currently in receipt of a total disability evaluation based on individual unemployability (TDIU). That is, he has been found unemployable due to the totality of his service-connected disabilities and is in receipt of a 100 percent disability evaluation, effective from February 5, 2013. See 38 C.F.R. §§ 3.340, 3.321, 4.16(a). The issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a skin disorder, to include tinea pedis and acne (now claimed as a rash and a nail disorder), including as secondary to exposure to herbicides, entitlement to service connection for a low back disability, and entitlement to service connection for hypertension, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In April 2013, prior to promulgation of a decision by the Board, the Veteran withdrew his appeal in regard to the claim of entitlement to a rating in excess of 30 percent prior to February 8, 2013, and a rating in excess of 70 percent on and after February 8, 2013, for PTSD. 2. The RO denied service connection for PTSD in an October 1985 rating decision, which was confirmed by a November 1987 decision of the Board; the Veteran did not timely appeal or request reconsideration of the Board decision. 3. The RO received the Veteran's petition to reopen his claim of service connection for PTSD on May 15, 2008; resolving all reasonable doubt in the Veteran's favor, he had PTSD when he filed his petition to reopen. 4. The RO denied service connection for tinnitus in an October 1985 rating decision, which was confirmed by a November 1987 decision of the Board; the Veteran did not timely appeal or request reconsideration of the Board decision. 5. The RO received the Veteran's petition to reopen his claim of service connection for tinnitus on May 26, 2010. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to a rating in excess of 30 percent prior to February 8, 2013, and a rating in excess of 70 percent on and after February 8, 2013, for PTSD, have been met. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The requirements are met for an effective date of May 15, 2008, for the award of service connection for PTSD. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.155, 3.156(b), 3.159, 3.400, 20.302(b)(1) (2012). 3. The criteria for an effective date earlier than May 26, 2010, for the grant of service connection for tinnitus have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Rating Claim Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2012). As explained in the Introduction above, after the RO denied the Veteran's claim for a rating in excess of 30 percent for his service-connected PTSD in an April 2011 rating action, the Veteran subsequently filed a timely appeal. In an April 2013 rating action, the RO increased the disability rating for his PTSD from 30 percent to 70 percent disabling, effective from February 8, 2013. See Hart, 21 Vet. App. at 505, 509-10. Thus, the Board has characterized his claim as a "staged" rating; entitlement to a rating in excess of 30 percent prior to February 8, 2013, and a rating in excess of 70 percent on and after February 8, 2013, for PTSD. After the RO increased the disability rating for the Veteran's PTSD from 30 percent to 70 percent disabling, they contacted the Veteran and asked him if that action satisfied his appeal. In an Appeal Status Election Form, dated in April 2013, the Veteran indicated that the RO's action satisfied his appeal with respect to his PTSD increased rating claim. Therefore, this form submitted by the Veteran is sufficient to withdraw his appeal for entitlement to a rating in excess of 30 percent prior to February 8, 2013, and a rating in excess of 70 percent on and after February 8, 2013, for PTSD. As a result, no allegation of error of fact or law remains before the Board for consideration with regard to the aforementioned "staged" rating claim. Hence, the appeal of this issue is dismissed. II. Earlier Effective Date Claims Introductory Matters In this decision, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (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); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (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). VA's Duty to Notify and Assist At the outset, the Board notes that with respect to the Veteran's claim of entitlement to an effective date prior to March 23, 2009, for the grant of service connection for PTSD, given the favorable outcome as noted below, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). The Veterans Claims Assistance Act of 2000 ("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 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA has satisfied its duty to notify by issuing pre-adjudication notice letters in June and August 2010. These letters advised the Veteran of all required elements for service connection. The letters further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded. Dingess, 19 Vet. App. at 473; aff'd sub. nom. Hartman v. Nicholson, 483 F3d 1311 (2007). If a claimant wishes to obtain an effective date earlier than that assigned in an RO decision, the claimant must file a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is a motion to revise the decision based on clear and unmistakable error. Rudd v. Nicholson, 20 Vet. App. 296. 299 (2006). In September 2010, the Veteran filed a timely NOD to the September 2010 rating decision that granted service connection for tinnitus, and that decision has not become final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2012). It is therefore proper for the Board to adjudicate his claim for an earlier effective date. Id. In January and April 2011 letters, the Veteran was specifically notified of the requirements necessary to establish an earlier effective date for the grant of service connection for tinnitus. Thus, the appropriate notice has been given in this case. VA has also complied with its duty to assist the Veteran in gathering evidence to substantiate his claim. All service treatment records and VA Medical Center (VAMC) treatment records are associated with the claims folder. Throughout this appeal, the Veteran has argued that entitlement to an effective date prior to May 26, 2010, for the grant of service connection for tinnitus is warranted based on the evidence already of record. He has not identified the existence of any additional evidence or argued that there are any developmental deficiencies in the current record. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. See Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Pertinent Laws and Regulations Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a). The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that 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 monthly benefits no earlier than the date that the claim for reopening was filed"). In Sears, the Court explained that the statutory framework did 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. The Court explained that the term "new claim," as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show clear and unmistakable error (CUE) in the prior denial of the claim. 38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be pain or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151(a). A claim is 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). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Appellate review of a rating decision is initiated by an NOD and completed Substantive Appeal after an SOC has been furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal in a timely fashion renders a rating decision final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of CUE. 38 C.F.R. §§ 3.104(b), 3.105(a). If the Board issues a decision confirming the RO's decision, the Board's decision subsumes the RO's decision. 38 C.F.R. § 20.1104. If the Board's decision is not timely appealed it is final and binding based on the evidence then of record on the date it was stamped. 38 C.F.R. § 20.1100; see also 38 U.S.C.A. §§ 7103(a), 7104(b); Hayslip v. Principi, 364 F.3d 1321, 1326 (Fed. Cir. 2004). A veteran will receive the benefit of the doubt when an approximate balance of positive and negative evidence exists. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. Wells v. Principi, 18 Vet. App. 33, 36 (2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A claim will be denied only if a preponderance of the evidence is against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). Earlier Effective Date for Award of Service Connection PTSD The Veteran filed his initial claim of entitlement to service connection for PTSD in February 1985. In support of his claim, he submitted a private medical statement, dated in September 1971, which showed that he had been diagnosed with anxiety hysteria neurosis. The Veteran also submitted a VA Psychosocial Assessment, which was undated. In the VA medical report, it was noted that the Veteran had served in Vietnam where he was exposed to enemy attack and fire. The Veteran provided medical aid and evacuation of the wounded. The Veteran reported experiencing nightmares, flashbacks, depression, anxiety, low self-esteem, and lack of impulse control. The medical care provider noted that those symptoms were consistent with the diagnosis of PTSD. Pursuant to VA's duty to assist him in the development of his claim, the Veteran underwent a VA examination in June 1985. Following the mental status evaluation, the examiner diagnosed the Veteran with a mixed personality disorder. According to the examiner, the evaluation did not indicate any evidence of PTSD. By an October 1985 rating action, the RO denied the Veteran's claim for service connection for PTSD. The Veteran subsequently filed a timely appeal. VAMC outpatient treatment records show that in December 1986, it was noted that the Veteran had PTSD symptoms with anxiety, depression, and suicidal ideations. In a December 1986 medical treatment record, the Veteran was given an Axis I diagnosis of PTSD with nightmares of Vietnam. In a letter from the Vet Center, dated in March 1987, it was indicated that the Veteran was being treated at the Loma Linda VA Hospital, Mental Hygiene Clinic, for PTSD as a result of his Vietnam experience. Again pursuant to the duty to assist and clarify medical evidence, a VA examination was conducted in April 1997. Following the mental status evaluation, the examiner stated that there was no Axis I diagnosis. The Axis II diagnosis was mixed personality disorder. According to the examiner, the psychiatric evaluation did not support a diagnosis of PTSD. In a November 1987 decision, the Board denied the Veteran's claim for service connection for a chronic acquired psychiatric disorder, including PTSD. The Board indicated that a chronic acquired psychiatric disorder was not present in service. The Board also reported that the Veteran did not have PTSD as the result of his combat service in Vietnam. In January 1995, the Veteran filed a Notice of Appeal (NOA) of the November 1987 decision with the Court. In an Order, dated in April 1995, the Court dismissed the Veteran's appeal for lack of jurisdiction. The Court noted that an NOA had to be filed within 120 days after the Board decision was mailed to the claimant. On May 15, 2008, the Veteran filed a petition to reopen his claim for service connection for PTSD. In July 2008, the Veteran underwent a VA examination. Following the mental status evaluation, the examiner stated that the Veteran did not have an Axis I diagnosis. The examiner noted that although the Veteran had a history of exposure to traumatic combat experiences, and although he had some symptoms consistent with PTSD, he did not meet the criteria for PTSD or for any other psychotic diagnosis. In an October 2008 rating action, the RO determined that new and material evidence had not been submitted to reopen the Veteran's claim for service connection for PTSD. The Veteran filed an NOD in November 2008. VAMC outpatient treatment records show that on March 23, 2009, the Veteran presented for a scheduled appointment for depression and to rule out PTSD. The Veteran indicated that he had anxiety and problems sleeping. According to the Veteran, he also had war memories and intrusive thoughts related to his service in Vietnam as a combat medic. Upon mental status evaluation, the Veteran had anxiety with stuttering. The diagnosis was the following: (Axis I) PTSD with anxiety and insomnia, (Axis IV) problems with social environment, and (Axis V) Global Assessment of Functioning (GAF) score of 60. In a July 2009 rating action, the RO determined that new and material evidence had been submitted to reopen the Veteran's claim for service connection for PTSD. In addition, the RO granted the underlying service connection claim for PTSD and assigned a 30 percent rating, effective from March 23, 2009. According to the RO, the effective date of March 23, 2009 was the date the Veteran was first diagnosed with PTSD. The Board finds that an earlier effective date of May 15, 2008, for the award of service connection for PTSD is warranted, and the appeal will be granted. In a November 1987 decision, the Board denied the Veteran's original claim for service connection for a chronic acquired psychiatric disorder, including PTSD. A decision by the Board is final regarding an issue unless such a decision is appealed to the Court, ordered for reconsideration by the Chairman of the Board, or is revised on the grounds of CUE. 38 U.S.C.A. §§ 7102(a), 7103, 7104, 7111, 7252(a), 7266 (West 2002); 38 C.F.R. § 20.1100. In January 1995, the Veteran filed an NOA of the November 1987 decision with the Court. However, in an April 1995 Order, the Court dismissed the Veteran's appeal for lack of jurisdiction. Thus, the Veteran did not timely appeal the November 1987 decision to the Court, nor did he file a motion for reconsideration under 38 U.S.C.A. § 7103 or revision for CUE under 38 U.S.C.A. § 7111. Therefore, the November 1987 Board decision is final and binding on this matter, and subsumes the prior October 1985 RO decision. Under the governing law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). A claimant may not receive an effective date earlier than the date of his application to reopen his claim. Smith v. West, 11 Vet. App. 134, 138 (1998); see Waddell v. Brown, 5 Vet. App. 454, 456 (1993) (effective date for reopened claim cannot be the date of the original claim). Thus, although the Veteran maintains that the award of service connection for his PTSD should be made effective the date of the October 1985 rating action wherein the RO denied his original claim for service connection for PTSD, given that the October 1985 RO decision was subsumed by the November 1987 Board decision, and in consideration of the fact that the November 1987 Board decision is final, the Board may not assign an effective date in October 1985. The Veteran's petition to reopen his claim for service connection for PTSD was received on May 15, 2008. However, the RO assigned March 23, 2009, as the effective date for the grant of service connection for PTSD. According to the RO, that was the date that the Veteran was first diagnosed with PTSD. VAMC outpatient treatment records show that on March 23, 2009, the Veteran was diagnosed with PTSD. Therefore, the Board notes that the issue on which this case turns is whether the Veteran had PTSD on May 15, 2008, the time he filed his petition to reopen his claim for service connection for PTSD. The Board will accord the benefit of the doubt to the Veteran and grant the claim, effective the date of the submission of the Veteran's petition to reopen. Consequently, resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran had PTSD on May 15, 2008. Therefore, the earliest effective date allowed under the provisions of 38 C.F.R. § 3.400 for the award of service connection for PTSD is the date the Veteran's claim to reopen this issue was received by VA, that is, May 15, 2008. Accordingly, for the reasons set out above, an effective date of May 15, 2008, for the grant of service connection for PTSD, which is the date of receipt of the claim to reopen, is warranted. Earlier Effective Date for Award of Service Connection for Tinnitus The Veteran seeks an effective date prior to May 25, 2010, for the grant of service connection for tinnitus. He alleges that service connection for tinnitus should date back to 1968 and his period of active service. See 38 C.F.R. § 3.400(b)(2) (the effective date of an award of service connection will be the day following the date of separation from service-if the veteran filed a claim within one year after service). The Veteran's service treatment records are negative for any complaints or findings of tinnitus. The Veteran initially filed a claim for service connection for tinnitus in June 1985. At that time, he underwent a VA examination and noted that he had ringing in his ears. In an August 1985 VA examination, he was diagnosed with tinnitus. In an October 1985 rating action, the RO denied the Veteran's claim for service connection for tinnitus. The Veteran subsequently filed a timely appeal. In a November 1987 decision, the Board denied the Veteran's original claim for service connection for tinnitus. The Board reported that tinnitus was not present during the Veteran's period of military service. A decision by the Board is final regarding an issue unless such a decision is appealed to the Court, ordered for reconsideration by the Chairman of the Board, or is revised on the grounds of CUE. 38 U.S.C.A. §§ 7102(a), 7103, 7104, 7111, 7252(a), 7266 (West 2002); 38 C.F.R. § 20.1100. In January 1995, the Veteran filed an NOA of the November 1987 decision with the Court. However, in an April 1995 Order, the Court dismissed the Veteran's appeal for lack of jurisdiction. Thus, the Veteran did not timely appeal the November 1987 decision to the Court, nor did he file a motion for reconsideration under 38 U.S.C.A. § 7103 or revision for CUE under 38 U.S.C.A. § 7111. Therefore, the November 1987 Board decision is final and binding on this matter, and subsumes the prior October 1985 RO decision. Under the governing law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). A claimant may not receive an effective date earlier than the date of his application to reopen his claim. Smith v. West, 11 Vet. App. 134, 138 (1998); see Waddell v. Brown, 5 Vet. App. 454, 456 (1993) (effective date for reopened claim cannot be the date of the original claim). The Veteran maintains that the award of service connection for his tinnitus should be made effective the day following the date of his separation from service. However, the evidence of record is negative for any evidence showing that the Veteran filed a claim within one year after service. Regardless, given that the November 1987 Board decision is final, the Board may not assign an effective date prior to the date of the November 1987 Board decision. Following the November 1987 Board decision, the Veteran did not submit any claim seeking to reopen the claim for service connection for tinnitus until May 26, 2010. In August 2010, the Veteran underwent a VA audiological examination which was conducted by QTC Services. The examiner diagnosed the Veteran with tinnitus and opined that it was most likely caused by or related to the Veteran's in-service noise exposure. By a September 2010 rating action, the RO determined that new and material evidence had been submitted to reopen the Veteran's claim for service connection for tinnitus. The RO also granted the underlying service connection claim for tinnitus and assigned a 10 percent disability rating, effective from May 26, 2010, the date of receipt of the Veteran's reopened claim. As noted above, the Veteran's claim to reopen was received on May 26, 2010, and that is the date as of which the RO has granted service connection for tinnitus. Thus, the assigned effective date of May 26, 2010, is the date of receipt of the Veteran's reopened claim. There is no indication in the file, or any allegation from the Veteran, that any formal or informal claim was filed between the Board's denial in November 1987, and the reopened claim in May 2010. Therefore, the Board must find that the Veteran does not meet the criteria for establishing an effective date prior to May 26, 2010, for the grant of service connection for tinnitus. There is no doubt of material facts to be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b). Rather, based upon the undisputed facts of record, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER The issue of entitlement to a rating in excess of 30 percent prior to February 8, 2013, and a rating in excess of 70 percent on and after February 8, 2013, for PTSD is dismissed. An effective date of May 15, 2008 for service connection for PTSD is granted. Entitlement to an effective date prior to May 26, 2010, for the grant of service connection for tinnitus is denied. REMAND The case is REMANDED for the following action: 1. Request from the Social Security Administration (SSA) complete copies of any disability determination(s) it has made concerning the Veteran and copies of the medical records that served as the basis for any such decision(s). If these records are not available, a negative reply is required. 2. After undertaking any additional development deemed necessary, readjudicate the remaining issues on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case must then be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs