Citation Nr: 1326467	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  11-19 470	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to an effective date prior to October 18, 2007, for the award of service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	New York State Division of Veterans' Affairs


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran served on active duty for training from July 1987 to November 1987 and on active duty from March 2004 to May 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, D.C.  Jurisdiction over the case was subsequently returned to the VA Regional Office (RO) in Buffalo, New York.

During the pendency of the appeal, an earlier effective date of October 18, 2007, for the award of service connection for PTSD was granted in a June 2013 rating decision.  This did not satisfy the Veteran's appeal.

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.


FINDING OF FACT

On October 18, 2007, more than one year following his discharge from service, the Veteran filed his original claim seeking service connection for PTSD.


CONCLUSION OF LAW

The criteria for an effective date prior to October 18, 2007, for the award of service connection for PTSD have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

As explained below, the determinative factor in this case is when the Veteran's claim was received.  Any notice sent or evidence received after the receipt of the claim would not establish the Veteran's entitlement to an earlier effective date for service connection for PTSD.  Therefore, no further development is required before the Board decides this appeal.

Legal Criteria

In general, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service.  38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).  

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA.  38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012).  

A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p) (2010); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered 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) (2010).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54.

Factual Background and Analysis

The Veteran is seeking an effective date prior to October 18, 2007, for the award of service connection for PTSD.  He contends that this claim has been ongoing since 2006. 

Following its review of the record, the Board finds that October 18, 2007, is the correct effective date for the award of service connection for the Veteran's PTSD because that it the date of receipt of his initial claim for service connection.

While the Veteran did file a claim seeking entitlement to service connection for a cervical spine disability in November 2006, the application for compensation filed by him, VA Form 21-526, made no reference to service connection for PTSD or any other psychiatric disorder.  

While there is medical evidence of record, dated prior to October 18, 2007, which includes references to psychiatric treatment, there is no indication of an intent to claim service connection for a psychiatric disorder.  See Ellington v. Nicholson, 22 Vet. App. 141 (2007) (finding that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefits); Brannon v. West, 12 Vet. App. 32 (1998) (noting that the mere presence of medical evidence does not establish an intent to seek service connection for a psychiatric disorder).  

In reaching this decision, the Board has considered the Veteran's written statements submitted herein.  Despite his contentions, however, it is clear that he did not file a formal or informal claim for service connection for PTSD prior to October 18, 2007.  The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against it.


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ORDER

An effective date earlier than October 18, 2007, for the award of service connection for PTSD is denied.

 

____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs