Citation Nr: 1334721 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 07-39 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an effective date earlier than May 18, 2006 for the grant of service connection for posttraumatic stress disorder (PTSD). [The issues of entitlement to service connection for erectile dysfunction and for a left eye disability will be addressed in a separate Board decision under a different docket number.] REPRESENTATION Veteran represented by: Tara R. Goffney, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran had active service from December 1967 to August 1969, to include a tour of duty in the Republic of Vietnam. He is the recipient of the Purple Heart, Navy Commendation Medal with "V" Device, and Combat Action Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In August 2010, the Veteran presented testimony relevant to this appeal before the undersigned Veterans Law Judge at a hearing held at the local RO. The Veteran had previously testified at a hearing before a Decision Review Officer (DRO). Transcripts of the hearings are associated with the record. The Board previously denied the Veteran's claim for entitlement to an effective date earlier than May 18, 2006 in December 2010, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The Veteran through his attorney requested that the portion of the December 2010 Board decision denying an earlier effective date for the award of disability compensation for PTSD be vacated and remanded for readjudication. In November 2011, the Court issued a Joint Motion for Partial Remand (JMPR) and remanded the case to the Board for further appellate review. In a July 2012 decision, the Board remanded the issue of entitlement to an effective date earlier than May 18, 2006 for the grant of service connection for PTSD, to include consideration of the finality of the March 1997 rating decision and the argument regarding notice being sent to the wrong representative. In a February 2013 supplemental statement of the case (SSOC), the RO readjudicated this claim. In a separate February 2013 SSOC, the RO also adjudicated the issue of whether the notification provided following the March 1997 rating decision was adequate. The claim has been returned to the Board for further appellate review. In the July 2012 decision, the Board also remanded the claim of whether there was clear and unmistakable error (CUE) in the March 1997 rating decision denying service connection for PTSD. Since that time, the Veteran and his attorney have argued this was improper, as their arguments were aimed at the non-finality of the 1997 decision, and only a final decision is subject to revision based on CUE. Clearly, much of the arguments are indeed focused on reasons the 1997 decision should not be deemed final. However, some statements implied the decision was erroneous, as the attorney argued the law in effect in 1997 was incorrectly applied. The Board must construe all arguments liberally, and since a claim of CUE had not yet been considered by the RO, the Board remanded the claim. The claim of CUE and the claim for an earlier effective date are inextricably intertwined, in that if CUE were found, the earlier effective date claim (which presumes finality) would be legally moot. The RO adjudicated the CUE claim in a February 2013 rating decision, and the Veteran was notified of this action and of his appellate rights in a February 2013 letter, but has not yet filed a notice of disagreement. In fact, his attorney's subsequent arguments to the Board seem to imply there was no CUE claim at all. Although the CUE claim was intertwined with the earlier effective date claim, as described above, it does not return to the Board with the claim that was on appeal. The Board's 2012 Remand of the CUE claim and the RO's 2013 denial informed the Veteran he had to appeal this particular claim if he disagreed. Again, no notice of disagreement has been filed. Considering the attorney's complaints that it has taken VA too long to complete the appeal following the CAVC action in 2011, the Board can see no reason for holding the case open for six more months just in case a NOD is filed. Thus, the Board finds that the claim for CUE in the March 1997 rating decision is not currently before the Board in appellate status and is not listed on the title page accordingly. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The Veteran's initial claim of entitlement to service connection for PTSD was received in November 1996. 3. Service connection for PTSD was denied in a March 1997 rating decision by the RO; a timely notice of disagreement was not filed, no evidence was received prior to the expiration of the appeal period, and relevant official service department records were not associated with the claims file since the March 1997 rating decision, so the March 1997 rating decision is final and notice of that decision was sent to the correct representative of record at that time. 4. The Veteran's claim to reopen the issue of service connection for PTSD was received on May 18, 2006. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than May 18, 2006 for the grant of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5101(a), 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155(a), 3.156, 3.400(r) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West Supp. 2013); 38 C.F.R. § 3.159(b) (2013). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: (1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and (2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, the agency of original jurisdiction (AOJ) issued a June 2006 notice letter to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claim to reopen service connection for PTSD, as well as the legal criteria for entitlement to service connection benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. In addition, the June 2006 letter from VA explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. VCAA notice must also include the basis for the denial in the prior decision and VA must respond with a notice letter that describes what evidence would be necessary to substantiate the element(s) required to establish service connection that was found insufficient in the previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). The question of what constitutes material evidence to reopen a claim for service connection depends on the basis on which the prior claim was denied. See Evans v. Brown, 9 Vet. App. 273, 282 (1996) (holding evidence is material if it is relevant to and probative of an issue that was a specified basis for the last final disallowance). In the June 2006 letter, the Veteran was apprised of the basis for the denial in the prior decision and the information necessary to reopen the claim for PTSD. The unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A (West Supp. 2013); 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the claims file contains the Veteran's service treatment records, reports of VA post-service treatment, Social Security Administration (SSA) records, as well as the Veteran's own statements in support of his claim. The Veteran has been examined by VA in connection with the service connection claim, and a medical examination is not needed to decide the effective date claim now before the Board. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. In August 2010, the Veteran was also provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge, and the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Effective Date Earlier than May 18, 2006 Under governing law, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2) (2013). When an award of service connection is granted based upon new and material evidence received after the final disallowance of a veteran's initial claim and which does not encompass service department records, the effective date of such an award shall be the date of receipt of the veteran's reopened claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. This informal claim must identify the benefit 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 (2013). The Veteran filed his initial claim of entitlement to service connection for PTSD in November 1996. This claim was denied in a March 1997 rating decision. In denying the claim, the RO noted the Veteran's combat stressors as denoted by his Purple Heart, but found that the evidence failed to show a diagnosis of PTSD. The only clinical evidence of record at that time was the report of a January 1997 VA examination, which reflected diagnosis of dysthymic disorder. The Veteran also reported not seeking mental health treatment prior to the March 1997 rating decision. Thus, the RO denied service connection for PTSD. The Board acknowledges the Veteran's argument that the January 1997 VA examiner made a clear error in that he failed to properly recognize the Veteran's combat history and Purple Heart, and thus, the diagnosis of dysthymic disorder, rather than PTSD, was not based on all relevant information. The examiner reported review of the claims file, but did not document the Purple Heart in the examination report, and in fact, states that the Veteran's stressors were not out of the ordinary. However, no matter how erroneous this statement may be, it does not equate to a conclusion that the denial was wrong and a faulty VA examination report does not provide a basis for the grant of an earlier effective date for the Veteran's grant of service connection for PTSD. Determination of effective dates is dependent on the act of filing a claim by the Veteran and the adjudication of that claim by VA. In this case, the Veteran filed a claim for service connection for PTSD in November 1996, which was denied by the RO in March 1997. A rating decision becomes final when a claimant does not file a notice of disagreement within one year after a decision is issued. 38 U.S.C.A. § 7105 (West 2002). A final decision on a claim that has been denied shall be reopened if new and material evidence with respect to that claim is presented or secured. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). The Court has ruled that, if the Board determines that new and material evidence has been submitted, the case must be reopened and evaluated in light of all of the evidence, both new and old. Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New and material evidence received within a year after the rating decision will be considered as having been filed in connection with the claim. 38 C.F.R. § 3.156(b). If service department records not previously associated with the claims file are received VA will reconsider the claim. 38 C.F.R. § 3.156(c). In this case, the Veteran was notified of the March 1997 rating decision in a March 1997 letter. A timely notice of disagreement was not filed, no evidence was received prior to the expiration of the appeal period, and relevant official service department records were not associated with the claims file thereafter. Therefore, the Board finds that the March 1997 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2013). Approximately nine years later, the RO received the Veteran's claim to reopen service connection for PTSD on May 18, 2006. The proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received, 38 U.S.C. § 5110(a), and only a request for revision premised on CUE could result in the assignment of an earlier effective date. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of [clear and unmistakable error, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date."); Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("When a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen."); see also Bingham v. Principi, 18 Vet. App. 470, 475 (2004). As noted in the introduction, the issue of whether there was CUE in the March 1997 rating decision denying service connection for PTSD was denied by the RO in a February 2013 rating decision. The Veteran has yet to file a timely notice of disagreement with that decision and, considering the attorney's complaints that it has taken VA too long to complete the appeal following the CAVC action in 2011, the Board can see no reason for holding the case open for six more months just in case a NOD is filed. Moreover, the Veteran's attorney in the July 2013 brief asserted that there was mischaracterization of the Veteran's argument as a request for CUE. 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); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the evidence is against the Veteran's claim of entitlement to an effective date prior to May 18, 2006 for the grant of service connection for PTSD. Although the Board is sympathetic to the difficulties the Veteran has faced due to his PTSD, the fact is that he did not appeal the 1997 denial and he did not file a new claim until 2006. Pursuant to the Veteran's contentions, the Board has also considered the finality of the March 1997 decision, including the argument regarding notice being sent to the wrong representative. Specifically, in a July 2013 brief, the Veteran's attorney contends that the RO "made an error while imputing information in its computer files. Someone mistakenly inputted the words 'VFW' (Veterans of Foreign Wars of the United States) instead of 'DAV' (Disabled American Veterans). As a result, the DAV was never notified of the 1997 decision." Review of the record shows that during the period from December 1989 to August 1994, correspondence was submitted from and copied to DAV regarding the Veteran's claims on appeal. March 1990 and October 1991 Compensation and Pension Award, VA Form 21-8947, lists DAV as the Veteran's Power of Attorney (POA). Approximately two years later, the Veteran filed his initial claim of entitlement to service connection for PTSD in November 1996. Pursuant to that claim, correspondence was submitted from and copied to VFW from December 1996 to March 1997, and a March 1997 VA Form 21-8947 lists VFW as the Veteran's POA. Approximately nine years later, the Veteran filed the claim to reopen service connection for PTSD in May 2006. During the pendency of the appeal, correspondence was submitted from and copied to DAV, and a May 2007 VA Form 21-8947 lists DAV as the Veteran's POA. The Board further notes that the record is absent of an Appointment of Individual as Claimant's Representative, via a VA Form 21-22 or its equivalent, during the previously identified appeal periods for either DAV or VFW, particularly at the time of the March 1997 rating decision. Negative replies were received from both DAV and VFW regarding the existence of verification that the Veteran was represented by their respective organization in 1997. It is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut this "presumption of regularity." Ashley v. Derwinski, 2 Vet. App. 307 (1992). The presumption of regularity applies to procedures at the RO. Mindenhall v. Brown, 7 Vet. App. 271 (1994). Evidence of a claimant's nonreceipt of a VA decision alone does not establish the "clear evidence" needed to rebut the presumption of regularity of a mailing. See Ashley, 2 Vet. App. at 309. In this case, neither the Veteran nor his attorney asserts that proper authorization, via a VA Form 21-22 or its equivalent, was signed and submitted authorizing DAV or VFW as the POA prior to the March 1997 rating decision. VA records, particularly, the March 1997 VA Form 21-8947, document VFW as the POA at that time. Moreover, the Veteran's attorney's contention of an "imputed error" is speculative and does not constitute clear evidence that VFW was not the Veteran's POA at time of the March 1997 rating decision. Given these facts, the Board finds that the presumption of regularity has not been rebutted, and that VFW was the Veteran's POA at time of the March 1997 rating decision and proper notification of the March 1997 rating decision was sent to VFW. Based on these findings, and applying the regulation that provides the proper effective date for disability compensation based on new and material evidence other than service department records received after final disallowance, the Board finds the effective date of May 18, 2006 for the grant of service connection for PTSD is correct, and an earlier effective date is precluded by law and regulation. See 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(r). ORDER An effective date earlier than May 18, 2006 for the grant of service connection for PTSD is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs