Citation Nr: 1326497 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 11-30 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to an effective date earlier than June 16, 2005 for the grant of service connection for PTSD. (The issues of whether an August 23, 1995 rating decision denying service connection for posttraumatic stress disorder (PTSD) may be revised or amended on the basis of clear and unmistakable error (CUE), of whether an August 23, 1995 rating decision denying service connection for a chronic digestive disorder may be revised or amended on the basis of CUE, entitlement to a compensable initial rating for gastroesophageal reflux disorder (GERD), entitlement to an effective date earlier than May 1, 2008 for the award of a 70 percent rating for the Veteran's PTSD, and entitlement to an effective date earlier than December 11, 2006 for the grant of service connection for GERD are addressed in a separate decision). REPRESENTATION Appellant represented by: Montana Veterans Affairs Division WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Evan M. Deichert, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1969, including a year of service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. The Veteran testified in Travel Board hearings before separate members of the Board in August 2009 and June 2012. Transcripts from both hearings have been associated with the Veteran's claims file. Because the Veteran has testified before two VLJs involving the same issue, each must participate in the outcome. As such, this decision is being rendered by a panel of three VLJs, including the two who conducted hearings on the issue here. 38 U.S.C.A. § 7102, 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). In Arneson v. Shinseki, 24 Vet. App. 379 (2011), the Court of Appeals for Veterans Claims (Court) held that a veteran is entitled to have an opportunity for a hearing before all Board members who will ultimately decide the appeal. Pursuant to the Court's holding in Arneson, a letter was sent to the Veteran in September 2012 notifying him that he had the option of having a third hearing with a VLJ who would be assigned to the panel to decide his appeal. As of the date of this decision, a response has not been received from the Veteran. Therefore, the Board finds that there is no hearing request pending at this time, and the Board has complied with the requirements set forth in Arneson. 38 C.F.R. § 20.700(a) (2012). Before turning to the merits of the claim, a review of the complex procedural history of the Veteran's claim is instructive. The Veteran sought service connection for PTSD in a November 1994 claim. This claim was denied in an August 23, 1995 rating decision. The Veteran filed a timely Notice of Disagreement with this decision, and the RO issued a Statement of the Case in May 1997. The Veteran did not file a Substantive Appeal, so that rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Veteran sought to reopen his claim for service connection for PTSD in a claim received on June 16, 2005. The RO granted this claim in a September 2006 rating decision. In December 2006, the Veteran raised a claim for an earlier effective date for the grant of service connection for PTSD. In a June 2007 rating decision, the RO denied the Veteran's claim for an earlier effective date for his PTSD. The Veteran filed a Notice of Disagreement with this decision, and the RO issued a Statement of the Case in May 2008. The Veteran thereafter filed a timely Substantive Appeal. The Veteran then testified in a Travel Board hearing in August 2009. In his hearing, the Veteran asserted CUE with the August 1995 rating decision that denied his claim for service connection for PTSD, and he also asserted that he was entitled to an effective date earlier than May 1, 2008 for the 70 percent disability rating for his PTSD. In a February 2010 decision/remand, the Board referred these two issues to the RO for further action. The Board found that the issue of entitlement to an earlier effective date for the grant of service connection was inextricably intertwined with the issue of CUE with the August 1995 rating decision, so it remanded that issue to allow the RO to adjudicate the Veteran's CUE claim. Following this remand, the RO denied the Veteran's CUE claim with regard to the August 1995 denial of service connection for PTSD in a June 2010 decision. The Veteran filed a timely Notice of Disagreement in July 2010. The RO issued a Statement of the Case for this issue in September 2011. The Veteran filed a Substantive Appeal in November 2011. At his second hearing in June 2012, the Veteran presented testimony related to both his earlier effective date for service connection claim and his CUE claim (along with numerous other issues). As the issue of entitlement to an earlier effective date for the grant of service connection for PTSD is the only issue in common between the separate VLJs, this is the only issue addressed in this decision. FINDING OF FACT 1. In August 1995, the RO denied the claim of service connection for an acquired psychiatric disorder, to include PTSD. 2. In August 1996, the Veteran submitted a notice of disagreement concerning this denial and submitted additional argument and evidence to support his claim. 3. In May 1997, the RO issued a statement of the case, taking into consideration the evidence and arguments submitted by the Veteran. 4. The Veteran did not submit a timely substantive appeal pertaining to the May 1997 statement of the case. Therefore, the August 1995 rating decision became final. 5. On June 16, 2005, the RO received the Veteran's claim to reopen the claim of service connection for PTSD. 6. There was no correspondence received from the Veteran between the May 1997 statement of the case and his claim to reopen dated June 16, 2005. 7. There was no claim to reopen the claim of service connection filed between the August 1995 final decision and the Veteran's claim to reopen dated June 16, 2005. CONCLUSION OF LAW The criteria for an effective date earlier than June 16, 2005 for the grant of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). With respect to the Veteran's claim for an earlier effective date for the grant of service connection for PTSD, the appeal arises from the Veteran's disagreement with the initial effective date assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. As noted above, the Veteran testified before two separate Veterans Law Judges. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Both VLJs complied with these requirements. In each hearing, the VLJ identified the issue on appeal and asked the Veteran questions regarding his claim. Further, in each hearing, the Veteran presented testimony and argument as to his specific contentions. The Veteran has also submitted additional relevant evidence during the course of the appeals. Thus, he has demonstrated actual knowledge of the ability to identify and submit additional relevant evidence and argument. The duties imposed by Bryant have thus been satisfied. The Board remanded the Veteran's claim for an earlier effective date for the grant of service connection for PTSD in a February 2010 remand. Specifically, the Board remanded this claim as it was inextricably intertwined with his unadjudicated claim for CUE. The Board thus instructed that the RO adjudicate his CUE claim in the first instance, and then complete any additional development necessary. His CUE claim has been adjudicated, and the Veteran has perfected an appeal for that claim (which the Board addresses in a separate decision). Accordingly, the Board finds substantial compliance with its February 2010 remand instructions. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009). II. Earlier Effective Date for Service Connection for PTSD Legal Framework Unless specifically provided otherwise in the statute, the effective date of an award based on a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. For VA compensation purposes, a "claim" is defined as "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). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Factual Background As described above, the Veteran first sought service connection for PTSD in November 1994. The RO denied his claim in an August 1995 rating decision. The Veteran filed a timely Notice of Disagreement with this decision in August 1996. In May 1997, the RO issued a Statement of the Case that continued this denial. The Veteran did not file a Substantive Appeal, so the August 1995 decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. On June 16, 2005, the Veteran's claim to reopen was received by the RO. The RO then granted the Veteran's claim for service connection in a September 2005 rating decision, assigning an effective date of June 16, 2005, the date that it received his claim. The Veteran filed a timely Notice of Disagreement with regard to the effective date assigned. After the RO issued a Statement of the Case in May 2008, the Veteran filed a timely Substantive Appeal. Analysis For the Veteran to be successful on his earlier effective date claim, it must be shown that he filed either a formal or an informal claim for benefits between the time of the final August 1995 final decision and the June 16, 2005 claim to reopen. The Board notes that in August 1996, the Veteran filed a notice of disagreement with the August 1995 rating decision denying the claim for a psychiatric disability, including PTSD and that he was subsequently issued a statement of the case in May 1997. He did not perfect an appeal; therefore, the August 1995 RO decision became final. Although the Veteran filed a notice of disagreement in August 1996 and submitted additional evidence, such was adjudicated by way of a May 1997 statement of the case and the Veteran did not perfect an appeal. There are no claims to reopen the claim of service connection for a psychiatric disorder, including PTSD until June 16, 2005. The evidence does not show and the Veteran does not allege that he filed a claim to reopen the claim of service connection for a psychiatric disorder, including PTSD prior to June 16, 2005. As such, the Board finds that the RO has assigned the earliest assignable effective date based on the reopening of the claim of service connection for PTSD. The Veteran's letters and his testimony make it clear that he believes that his claim should have been granted at the time of his first application for benefits in 1994, with a corresponding effective date. In Rudd v. Nicholson, however, the Court held that a freestanding claim of entitlement to an earlier effective date would vitiate the rule of finality and as such is not proper. 20 Vet. App. 296, 297-300 (2006). As the Veteran filed the current claim for an earlier effective date long after the August 1995 rating decision became final, there is no legal mechanism to award him an effective date earlier than that already assigned. Id. The Veteran's arguments focus on the idea that the August 1995 rating decision that first denied his claim for service connection for PTSD was the product of clear and unmistakable error. This claim is addressed in a separate decision and has been denied. Thus, the August 1995 decision remains final and the earliest effective date assignable is based on the claim to reopen which the RO received on June 16, 2005. Given the foregoing, the preponderance of the evidence is against the claim for an earlier effective date for the grant of service connection for PTSD; there is no doubt to be resolved; and an effective date earlier than June 16, 2005 for the award of service connection for PTSD is not warranted. ORDER An effective date earlier than June 16, 2005 for the grant of service connection for posttraumatic stress disorder is denied. ________________________ ________________________ TANYA A. SMITH SONNET GORHAM Acting Veterans Law Judge, Acting Veterans Law Judge, Board of Veterans' Appeals Board of Veterans' Appeals ________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs