Citation Nr: 1326290	
Decision Date: 08/19/13    Archive Date: 08/26/13

DOCKET NO.  11-24 003	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an earlier effective date, prior to November 12, 2002, for service connection for post traumatic stress disorder.

2.  Entitlement to an earlier effective date, prior to November 12, 2002, for the award of basic eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran had active military service from May 1988 to July 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina.  The July 2010 rating decision granted service connection for PTSD with a 100 percent rating, effective from July 12, 2010.  The Veteran was subsequently assigned an effective date of November 12, 2002, in a June 2011 Statement of the Case (SOC).

The Veteran testified at a Central Office Hearing in Washington, DC, before the undersigned.  The transcript of the hearing is of record and was reviewed.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  A May 1999 rating decision which denied service connection for PTSD was not appealed and therefore became final. 

2.  In November 2002, the Veteran filed a new claim for entitlement to service connection for PTSD.

3.  A formal or informal claim to reopen a previously denied claim for service connection for PTSD was not received prior to November 12, 2002.

4.  The Veteran has been found to be totally disabled as of November 12, 2002; thus an earlier effective date for the grant of entitlement to DEA under Chapter 35 is precluded by law.


CONCLUSIONS OF LAW

1.  The May 1999 rating decision which denied service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2012).

2.  There is no legal entitlement to an effective date earlier than November 12, 2002, for the award service connection for PTSD.  38 U.S.C.A. § 5110 (West 2009); 38 C.F.R. §§ 3.400. 20.1103 (2012).

3.  The criteria for an effective date prior to November 12, 2002, for the award of DEA benefits have not been met. 38 U.S.C.A. §§ 3501, 3510, 5110 (West 2009); 38 C.F.R. §§ 3.157, 3.400, 3.807(a), 21.3021 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA's Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2012); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)).  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).

VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in July 2007.  This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence.  It provided notice regarding the disability evaluation and effective date elements of a service connection claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).  Although the Veteran has not been specifically notified of the requirements necessary to establish entitlement to an earlier effective date for the grant of service connection for PTSD, the VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of this information for newly raised or "downstream" issues, such as claims for increased compensation or earlier effective date following initial grants of service connection for a disability in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice.  See VAOPGCPREC 8-2003 (Dec. 22, 2003).  

The duty to assist provisions of the VCAA have been met.  The claims file contains service treatment records (STRs), reports of post-service medical treatment, and reports of VA examinations.  

The Veteran testified at a hearing before the undersigned in October 2012.  The Veteran specifically stated that he only wished to testify regarding his claim for an earlier effective date for the grant of service connection for PTSD.  He stated that he did not want to testify about his DEA claim.  At a hearing on appeal, 38 C.F.R. § 3.103(c)(2) (2012) requires that a Veterans Law Judge has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).  In the present case, the undersigned clearly set forth the issues to be discussed during the hearing, but did not suggest evidence to submit to substantiate the claims.  However, the Board finds that the Veteran was not prejudiced by this omission.  The record does not indicate that there is any relevant overlooked evidence that the Veteran could submit that would aid in substantiating his claims for earlier effective dates and he did not assert that evidence was missing; hence, he is not prejudiced by the undersigned not having suggested the submission of overlooked evidence.  the Veteran has neither alleged nor proven that prejudice resulted from this omission, and therefore, the Board determines that none resulted.  See Shinseki v. Sanders, 129 S.Ct. 1696, 1704, 1705, 1706 (noting that "the party that seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted").

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal.  He has been given ample opportunity to present evidence and argument in support of his claims.  Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review.  General due process considerations have been complied with by VA.  See 38 C.F.R. § 3.103 (2012). 

Analysis

I. Earlier Effective Date--PTSD

Generally, the VA guidelines for the determination of an effective date of an award of disability compensation are set forth at 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400.  Except as otherwise provided, the effective date of an evaluation and an award of compensation benefits that is based on an original claim, claim reopened after a final disallowance, or claim for increase will be the date the claim was received or the date entitlement arose, whichever is later.  See 38 C.F.R. § 3.400.

The specific provision for the assignment of an effective date for an award of compensation benefits following the grant of an original claim for service connection, is that the effective date will be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service, and otherwise, the date of receipt of claim, or date entitlement arose, whichever is later.  See 38 C.F.R. § 3.400(b)(2)(i).

However, the assigned effective date of service connection for a claim that has been reopened (based upon receipt of "new and material" evidence) is that of the date of receipt of the claim to reopen, or date entitlement arose, whichever is later.  See 38 C.F.R. § 3.400(r).

VA regulations provide that once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of reports of outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits or an informal claim to reopen.  38 C.F.R. § 3.157(b).  However, the type of reopening contemplated by the regulation is one for compensation where a claim for service connection for a disability has been allowed but "compensation disallowed for the reasons that the service-connected disability is not compensable in degree." 38 C.F.R. § 3.157(b); MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006); see also Crawford v. Brown, 5 Vet. App. 33 (1993). 

Such a factual scenario is not present here.  The RO denied a claim for service connection for a an acquired psychiatric disorder, but not because the disability was considered not compensable in degree.  Thus, 38 C.F.R.§ 3.157(b) is not applicable. That provision contemplates "reopening" of a claim for "compensation," not service connection, where service connection had already been granted, but no compensation was awarded.  In this case, no formal claim for service connection for a psychiatric condition had ever been allowed before the July 2010 rating decision was promulgated.  Accordingly, the provisions of section 3.157(b) do not apply in this case. 

In accordance with the applicable VA guidelines on the determination of effective dates, no earlier effective date of service connection than November 12, 2002 is allowable for the Veteran's service-connected PTSD.

The Veteran was awarded service connection for PTSD by a July 2010 RO rating decision due to a change in regulations.  Prior to the July 2010 rating decision, the RO had denied reopening the claim in rating decisions dated in December 2003, May 2004, and June 2004.  The Veteran's claim for PTSD was initially reopened in an October 2008 SOC upon receipt of new and material evidence.  There is no other conclusion to reach under applicable VA law than that the RO in July 2010 properly assigned November 12, 2002 as the effective date of service connection for PTSD, given that November 12, 2002 was the date of receipt of the Veteran's petition to reopen this claim.  Under 38 C.F.R. § 3.400(r), the law and regulations are clear and definitive in holding that the effective date of a reopened claim cannot be earlier than the petition to reopen (and if anything, could be deemed later based on the date entitlement actually arose).  The instant case falls squarely under this provision.

The actual medical evidence supporting the Veteran's petition to reopen included VA medical center (VAMC) records from the Asheville VAMC dating from January 2000 to August 2008 and Social Security Administration (SSA) records.  The RO reopened the Veteran's claim but continued to deny service connection until the July 2010 rating decision because the Veteran did not have a verifiable stressor as required by 38 C.F.R. § 3.304(f).  While the Veteran's exact stressors were never verified, the Veteran was granted service connection for PTSD in the July 2010 rating decision under 38 C.F.R. § 3.304 (f) (1) because his contentions were consistent with the circumstances, conditions, or hardships of the Veteran's service.  The Board notes that the validity of the Veteran's stressors are not at issue in this case.  

The RO's July 2010 grant recognized the date of July 12, 2010 as the date of the new regulation and initially granted that as the effective date.  Subsequently in a June 2011 SOC, the effective date was changed to November 12, 2002, recognizing the petition to reopen as the proper effective date of service connection.  However, there is no objective support, evidence cited, or argument presented otherwise to support any earlier effective date, nor does it appear that there is any basis under the law to support such an earlier effective date.  The Board is furthermore bound by the law governing the assignment of effective dates in its determination in this case.  See 38 U.S.C.A. § 7104(c).

The Veteran asserts that the effective date of the grant of service connection for PTSD should be July 26, 1991, the date following his separation from service.  The Board is aware of the lengthy procedural history and long-term measures undertaken by the Veteran to obtain a favorable disposition of his service connection claim.  Following the original RO denial of his claim in May 1999, the Veteran filed a timely Notice of Disagreement and was issued a SOC in February 2000.  He did not submit any further information regarding his claim for PTSD nor a Substantive Appeal.  Therefore the May 1999 decision became 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). 

The next information he submitted with regard to his PTSD was his petition to reopen in November 2002.  Although the evidence shows that the Veteran was treated for PTSD prior to that time, medical evidence alone cannot be an informal claim, there must be claimant intent to apply for a benefit.  See Brannon v. West, 12 Vet. App. 32 (1998).  There is nothing in the record that could be construed as a formal or informal claim.  The Board acknowledges the Veteran's contentions that his PTSD should have been granted from the time of his separation from active duty service as that is when he originally filed his claim.  The evidence of record indicates that the Veteran's original claim for service connection for PTSD was not filed until June 1998 and was subsequently denied in the May 1999 rating decision.  Regarding the propriety of the assigned effective date, the applicable law does not permit assignment of an effective date of service connection before the receipt of the most recent petition to reopen.

The Board further notes that the Veteran has not at any point alleged the presence of Clear and Unmistakable Error (CUE) in the prior RO decision that denied his claim for service connection, as another potential avenue of recovery, in seeking to demonstrate that due to a very serious substantive error of law or fact (not merely weighing of fact, or failure to fully develop the claim) the outcome of that decision would have been manifestly different.

Nor for that matter is there any indication that the July 2010 RO decision granting service connection for PTSD, or the preceding grant of reopen in the October 2008 SOC, was premised in whole, or in part, upon receipt of newly identified official service department records, which under 38 C.F.R. § 3.156(c) would otherwise substantiate an earlier effective date retroactive to when the claim was initially considered and adjudicated.

In summary, as the most recent petition to reopen in this case was received November 12, 2002, and there is no earlier filing that resulted in the reopening, and ultimate grant of the Veteran's claims, this requires that November 12, 2002 constitutes the effective date of service connection.  Accordingly, the Board is denying the claim for an earlier effective date for service connection for PTSD.  The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

II. Earlier Effective Date-Dependents' Educational Assistance

For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability.  38 U.S.C.A. §§ 3501, 3510 (West 2009); 38 C.F.R. §§ 3.807(a), 21.3021 (2012).

With regard to the Veteran's claim for an effective date prior to November 12, 2002, for the grant of basic eligibility to DEA benefits, the Board finds that pursuant to 38 U.S.C.A. Chapter 35, the Veteran was found to have a permanent total service connected disability when he was granted 100 percent for PTSD, effective November 12, 2002.

Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation.  38 U.S.C.A. § 5113.  Accordingly, because the Veteran was found to have a permanent total service-connected disability when he was granted entitlement to service connection for PTSD with a 100 percent rating, effective November 12, 2002, entitlement to basic eligibility to Chapter 35 Dependents' Educational Assistance must also be effective November 12, 2002.  Although the Veteran may contend that he is entitled to an earlier effective date for Chapter 35 Dependents' Educational Assistance, the regulatory criteria and legal precedent governing eligibility for the receipt of such benefits are clear and specific.  The Board is bound by these criteria.  38 U.S.C.A. §§ 503, 7104 (West 2002).  As such, the Veteran's claim must be denied.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  


ORDER

An effective date earlier than November 12, 2002, for the grant of service connection for posttraumatic stress disorder is denied.

An effective date prior to November 12, 2002, for the grant of DEA pursuant to 38 U.S.C.A. Chapter 35 is denied.



______________________________________________
D. MARTZ AMES
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs