Citation Nr: 1329292 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 11-11 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date earlier than July 19, 2005 for the award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from October 1948 to October 1949, and from August 1950 to June 1954. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA), regional office (RO) in San Juan, the Commonwealth of Puerto Rico, which granted service connection for PTSD, effective July 19, 2005. The Veteran appealed for an earlier effective date. The Board denied the Veteran's claim for entitlement to an effective date earlier than July 19, 2005 for the award of service connection for PTSD in an April 2012 decision. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an April 2013 Joint Motion for Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the April 2012 decision as to that issue. The Court granted the JMR in an April 2013 Order. The issue returns to the Board for further consideration. The issue of whether there was clear and unmistakable error (CUE) in a rating decision dated in February 1955 that reduced the rating of a service connected psychiatric disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). This issue is properly referred because claims of CUE in an RO decision must be referred in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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. Private medical records establish that PTSD was first diagnosed in April 2005. 2. On July 19, 2005, more than one year after the Veteran's separation from service, the RO received his first formal or informal claim for service connection for PTSD. Service connection for PTSD was subsequently granted, effective July 19, 2005. CONCLUSION OF LAW The criteria for an effective date prior to July 19, 2005, for the grant of service connection for PTSD, are not met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in April 2008, regarding his claim for service connection for PTSD. He was provided with pre-adjudicatory notice that he would be assigned an effective date in accordance with the facts found as required by Dingess, supra. In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 473; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). That burden has not been met in this case. The appellant was notified that his claim was awarded with an effective date of July 19, 2005, the date of his claim for service connection, and an initial rating was assigned. He was provided notice how to appeal that decision, and he did so. He was provided a statement of the case that advised him of the applicable law and criteria required for an earlier effective date. VA has obtained service treatment records, assisted the appellant in obtaining evidence, and afforded the appellant the opportunity to give testimony before the RO and the Board, although he declined to do so. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file, and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. Effective Date of Service Connection for PTSD The Veteran seeks an effective date prior to July 19, 2005, for the award of service connection for PTSD. The effective date for a grant of service connection is the day after separation from service or date entitlement arose, if a claim is received within one year after separation from service, otherwise the date of receipt of claim, or the date entitlement arose, whichever is later. 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 the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means 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). The Court has held that the mere presence of a disability does not establish intent on the part of a claimant to seek service connection for that disability. See KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995); see also Brannon v. West, 12 Vet. App. 32, 135 (1998). On July 19, 2005, the RO received the Veteran's VA Form 21- 4138 on which he requested service connection for PTSD. VA psychiatric examination reports dated in November 2005 and July 2007 did not include diagnoses of PTSD. A private physician's statement dated in October 2007 noted that the Veteran had been seen in April 2005 and October 2007, and that his diagnosis was PTSD. A VA examination dated in May 2009 diagnosed PTSD. In a February 2010 rating decision, the RO granted service connection for PTSD. In awarding service connection, the RO assigned an effective date for this disability based on the date of receipt of the claim for service connection, that is, July 19, 2005. A review of the claims folder reveals the first claim, formal or informal, seeking service connection for PTSD was the Veteran's claim received by the RO on July 19, 2005, many years after service. Additionally, the fact that the Veteran received treatment for PTSD prior to July 19, 2005, does not warrant the assignment of an earlier effective date, as his original claim for service connection was received on that date. In the current case, the date of receipt of the Veteran's initial claim for service connection for PTSD is July 19, 2005. Accordingly, the effective date of service connection for PTSD may be no earlier than July 19, 2005, the date of receipt of his claim. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The Board has also considered the Veteran's assertion, articulated by his attorney in a July 2011 statement and elsewhere, that an effective date earlier than July 19, 2005 for the grant of service connection for PTSD is warranted because the Veteran's November 1955 disagreement with a February 1955 rating decision reducing his disability rating for his psychophysiologic reaction of the gastro-intestinal tract, formerly rated as anxiety reaction, from 10 percent to noncompensable as of April 10, 1955, has been continuously on appeal, thereby warranting an effective date of April 10, 1955 for the award of service connection for PTSD. The Board finds that this argument is in error for two distinct reasons. First, the Veteran's premise that his PTSD constitutes the same disability as his psychophysiologic reaction of the gastro-intestinal tract is flawed. The Federal Circuit held in Ephraim v. Brown, 82 F.3d 399 (1996) that "a newly diagnosed disorder, whether or not medically related to a previously diagnosed disorder, can not be the same claim when it has not been previously considered....[A] claim that could not have been adjudicated prior to the original notice of disagreement, because all or a significant element of that claim had not yet been diagnosed, is a new claim although both the new and the prior diagnosis relate to mental disorders." Id. at 401-2. In Boggs v. Peake, 520 F.3d 1330 (2008), the Federal Circuit similarly held that the factual basis of a claim is the veteran's disease or injury rather than the symptoms thereof. As applied here, the Veteran's PTSD is a distinct disability from his psychophysiologic reaction of the gastro-intestinal tract, not least because PTSD was originally diagnosed in April 2005. Therefore, as the two claims are distinct, an error in the processing of the disagreement with the reduction of the disability rating for a psychophysiologic reaction of the gastro-intestinal tract would not result in the application of an earlier effective date for service connection for PTSD. Second, the Veteran's claim contesting the reduction of his psychophysiologic reaction of the gastro-intestinal tract, formerly rated as anxiety reaction, from 10 percent to noncompensable as of April 10, 1955 has not been continuously on appeal. Under the current statutory scheme, when the AOJ does not resolve the Veteran's disagreement either by granting the benefit sought or through withdrawal of the notice of disagreement, such agency shall prepare a statement of the case. 38 U.S.C.A. § 7105(d)(1) (2012). By contrast, the statutory scheme extant at the time of the Veteran's notice of disagreement in 1955 did not require the issuance of a statement of the case. 38 U.S.C.A., Ch. 12A, Vet.Reg.No.2(a), Part II, par. III. (1955). In the February 1955 letter accompanying the rating decision, the AOJ properly advised the Veteran that "If you wish to appeal, you should so inform this office, and you will be furnished with VA Form P-9 for that purpose." Thereafter, the Veteran filed his notice of disagreement in November 1955, and the AOJ sent the Veteran a letter later in November 1955 informing him that it was enclosing a VA Form P-9, and that "In order that this appeal may be considered by the Board of Veterans Appeals on the basis of the entire record of this case, the enclosed form, completed, and with signature, claim number and present address affixed, should be promptly returned to this office." The Veteran did not timely file an appeal. Thus, based on the statutes in effect at the time, the AOJ did not commit procedural error in its response to the Veteran, and his claim contesting the reduction of his psychophysiologic reaction of the gastro- intestinal tract, formerly rated as anxiety reaction, from 10 percent to noncompensable as of April 10, 1955 has not remained continuously on appeal. As there is no evidence of VA receipt of a written claim, formal or informal, for service connection for PTSD until July 19, 2005, and as this was more than a year after service, service connection may be no earlier than July 19, 2005, the date of VA receipt of the claim. The Board concludes that there is no entitlement to an earlier effective date for an award of service connection. Accordingly, the claim must be denied. CONTINUED ON NEXT PAGE ORDER An effective date for an award of service connection for PTSD, prior to July 19, 2005, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs