Citation Nr: 1334931 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 13-14 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an earlier effective date for the grant of service connection for posttraumatic stress disorder (PTSD), prior to August 22, 2012. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from December 1977 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which granted service connection for PTSD and assigned an initial rating, effective August 22, 2012. The Veteran appealed the effective date assigned in this decision, and the matter is now before the Board. Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system. The documents within the system do not include any non-duplicative materials pertinent to the present appeal. FINDINGS OF FACT 1. An unappealed June 2011 RO decision denied service connection for PTSD. 2. No communication or evidence was received prior to August 22, 2012, which could be interpreted as an informal or formal claim to reopen the Veteran's previously disallowed claim of entitlement to service connection for PTSD. CONCLUSION OF LAW The criteria for an effective dated prior to August 22, 2012, for the grant of service connection for PTSD has not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.104(a), 3.151, 3.155, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 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 any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). The Veteran's appeal arises from an appeal of the initial effective date following the grant of service connection of PTSD. Once service connection is granted the claim is substantiated, additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under VCAA. Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. See also 38 C.F.R. § 3.159(c)(4)(i) (2013). The RO has obtained the service records, and VA medical records. As the material issues of fact to establish an earlier effective date pertain to whether or not there was a pending or unadjudicated earlier claim for the same disability, which is not a medical question, a VA medical examination or medical opinion is not needed to decide the claims. And no further development under the duty to assist is required to decide the claims. Earlier Effective Date The Veteran contends that she is entitled to an effective date earlier than August 22, 2012, for the grant of service connection for PTSD. She alleges that she is entitled to an effective date of July 8, 2010, for the grant of service connection for PTSD. In general, except as otherwise provided, the effective date of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2013). For claims of entitlement to service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service, otherwise the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2013). However, for reopened claims, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r) (2013). 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). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2013). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Here, the Veteran submitted a claim of entitlement to service connection for PTSD in July 2010. It was also at this time that a VA psychiatrist diagnosed the Veteran with PTSD resulting from one or more episodes of in-service personal trauma. Service connection for PTSD requires medical evidence diagnosing the condition; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). In order to confirm the Veteran's diagnosis of PTSD, she was scheduled for a VA examination in December 2010. The Veteran failed to report of the examination, and in February 2011 a failed attempt was made to contact her in order to reschedule the examination. Because a diagnosis of PTSD in accordance with DSM-IV could not be confirmed, the RO denied entitlement to service connection in a March 2011 decision. In April 2011 the Veteran indicated that she had missed prior VA examination appointments because she had "just started a new job and had no regular transportation." The RO rescheduled the Veteran for a new examination in May 2011, to which she also failed to report. Accordingly, in June 2011 the RO again denied entitlement to service connection for PTSD. The Veteran was sent a letter notifying her of the decision, and she did not respond with a notice of disagreement nor was new evidence submitted within one year of the rating decision - therefore, the decision became final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.516(b), 20.302, 20.1103 (2013). VA next received a communication from the Veteran on August 22, 2012 when she filed to reopen the previously denied claim of service connection for PTSD. The Board has reviewed the entire claims file, including records of VA treatment, and finds that no claim, formal or informal, was received by VA between the date of the RO's June 2011 denial, and the Veteran's August 2012 claim to reopen. Having established finality of the June 2011 denial, the Board finds that 38 C.F.R. § 3.400(r) - which applies to reopened claims - is the controlling regulation. Again, for reopened claims the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. Here, the claim to reopen was received August 22, 2012; therefore an earlier date cannot be the effective date for the subsequent grant of service connection. In addition, entitlement to service connection for PTSD was not based on a liberalizing VA law or issue, see 38 U.S.C.A. § 5110(g) (West 2002), 38 C.F.R. § 3.114 (2012), and an effective date is therefore not warranted on this basis, or on the basis of any other exception when granting entitlement to service connection for a disability in response to an application to reopen a claim that had previously been denied. The Veteran argues that at the time or the prior denial, the criteria to grant service connection for PTSD were met because the claimed in-service stressor event had been verified and a diagnosis of PTSD had already been established; thus, the effective date should reach to the date of her prior claim. To that end, the Board acknowledges that an earlier effective date might be available if VA were to vitiate the finality of the June 2011 RO decision. See 38 C.F.R. § 3.105(a) (2013). Specifically, if the evidence establishes clear and unmistakable error (CUE) in the prior decision, the prior decision will be reversed or amended; a finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.105(a) (2013). Nonetheless, CUE is a very specific and rare kind of error. It is the kind of error, of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The claimant must provide "some degree of specificity as to what the alleged error is, and, unless it is the kind of error . . . that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error." Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (emphasis in original). Here, however, the Veteran's contention does not rise to the level of an allegation of CUE. Thus, in the absence of a current and specific CUE claim, CUE cannot be a basis of the earlier effective date of award in the claim currently before the Board. 38 C.F.R. § 3.105; see Fugo, 6 Vet. App. at 44 (claim of CUE must be pled with specificity). Accordingly, the Board finds no basis in the law or facts to assign an effective date for service connection of PTSD earlier than August 22, 2012. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In reaching this conclusion, the benefit of the doubt doctrine was considered. However, as a preponderance of the evidence is against this claim this doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date earlier than August 22, 2012, for the award of service connection for PTSD is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs