Citation Nr: 1336061	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  10-29 871	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to increases in the ratings for posttraumatic stress disorder (PTSD), currently assigned ratings of 30 percent from December 4, 2007 and 50 percent from April 4, 2011.

2.  Entitlement to an effective date earlier than December 4, 2007 for a grant of service connection for PTSD.


REPRESENTATION

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


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1967 to February 1970.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision which granted service connection and assigned a 30 percent rating, effective December 4, 2007.  In July 2012, the RO assigned an increased staged rating for PTSD of 50 percent, effective April 4, 2011.  

A Travel Board hearing was held in May 2013 before the undersigned and a transcript from the hearing is associated with the record.  To the extent that the Veteran testified with respect to perceived errors in the September 2003 rating decision that could be construed as a claim for clear and unmistakable error (CUE), he specifically stated on the record that he did not want to pursue a CUE claim at this time.  See May 2013 hearing transcript at 11.

The matter of increased ratings for PTSD is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action on his part is required.


FINDINGS OF FACT

1.  A September 2003 rating decision denied entitlement to service connection for PTSD; the Veteran did not appeal, nor was new and material evidence received within one year.

2.  The Veteran's application to reopen his prior claim for PTSD was dated December 4, 2007; the RO granted entitlement to service connection for PTSD from that date.


CONCLUSION OF LAW

The criteria for entitlement to an earlier effective date for service connection for PTSD have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act

The VCAA, in part, 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, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  A March 2009 letter also provided him with general disability rating and effective date criteria.  The Veteran has had ample opportunity to respond/supplement the record.  

In the May 2013 hearing, the Veteran seemed to allege that he never received notice of the prior final rating decision denying PTSD in September 2003.  However, a review of the record shows that a letter was mailed to the Veteran on September 23, 2003 notifying the Veteran that a decision had been made on his claim for service connection for PTSD.  There is no evidence that such notification was mailed to an incorrect address or that the Veteran otherwise did not receive notice of the denial of service connection.  The Board notes that in correspondence from the Veteran dated March 30, 2004, he provided the same address that was used to mail the September 23, 2003, notification letter.  Thus, the Veteran is presumed to have received notice.  See Woods v. Gober, 14 Vet. App. 214, 220 (2000) (holding that there is a presumption of regularity that the Secretary of VA properly discharges his official duties by mailing a copy of a VA decision to the last known address of the appellant and the appellant's representative, if any, on the date that the decision was issued).

All evidence relevant to the appellant's claim for an earlier effective date has been secured.  Notably, determinations regarding effective dates of awards are based essentially on what was shown by the record at various points in time and application of governing law to those findings.  Generally, further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding.  The appellant has not identified any other pertinent evidence that remains outstanding.  Thus, VA's duty to assist with regarding to the claim for an earlier effective date is met. Accordingly, the Board will address the merits of this claim.

Earlier Effective Date

The Veteran is seeking entitlement to an effective date earlier than December 4, 2007 for a grant of service connection for PTSD.

The effective date of a grant of service connection is governed by 38 U.S.C.A.        § 5110 as implemented by 38 C.F.R. § 3.400.  38 U.S.C.A. § 5110(a) states, "unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore."  38 U.S.C.A. § 5110(b)(1) states that "the effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefore is received within one year from such date of discharge or release."
 
The regulation implementing 38 U.S.C.A. § 5110 provides that the effective date of an evaluation and award of compensation based on direct 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 active service; otherwise it shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(i)(2).  Where new and material evidence has been submitted to reopen a prior claim for service connection, the effective date will be either the date of receipt of the claim to reopen or the date entitlement arose, whichever is later.  Id. at § 3.400(q).  If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen.  See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244 (2002), aff'd 349 F.3d 1326 (Fed. Cir. 2003).
 
The Veteran's original claim for entitlement to service connection for PTSD was denied in a September 2003 rating decision.  He was notified of that decision by letter dated September 23, 2003.  The letter was sent to his address of record and was not returned as undeliverable.  The Veteran did not appeal.  In addition, new and material evidence was not received within one year of the notification of the September 2003 denial.  The record does include correspondence from the Veteran received by VA in April 2004, within one year of the September 2003 notification.  However, that correspondence did not address PTSD, but instead addressed claims for service connection for tinnitus and hearing loss.  For these reasons, the Board finds that the September 2003 rating decision became final.  

There is no evidence that the Veteran attempted to reopen his PTSD claim prior to December 2007, when the Veteran filed an application to reopen.  The Veteran was granted service connection for PTSD in a December 2008 rating decision, effective December 4, 2007, the date the Veteran filed his claim to reopen.

It appears that the Veteran is arguing that there was sufficient evidence of record in September 2003 to grant service connection for PTSD and that therefore, he should receive benefits from the time he filed his original claim.  While the Veteran is clearly unhappy his claim was denied in September 2003, the appropriate remedy for that dissatisfaction would have been to appeal the September 2003 rating decision within the statutory period.  The Veteran failed to do so, and the September 2003 decision became final.

As discussed earlier, the effective date of a final claim, reopened based on submission of new and material evidence, where that evidence is other than service department records, will be the date of receipt of the new claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q), (r).

After the September 2003 decision and before December 4, 2007, there was no communication or action received by VA from the Veteran of an intent to claim service connection for PTSD, constituting an informal claim under 38 C.F.R. § 3.155.  There was no pending informal claim under 38 C.F.R. § 3.157.  Therefore, there was no pending claim or unadjudicated claim for service connection for PTSD prior to December 4, 2007, and there is no factual or legal basis to assign an effective date before December 4, 2007.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.

The RO assigned the earliest effective date legally permitted in this case for the grant of service connection for PTSD, which is the date of receipt of the application to reopen the claim supported by new and material evidence.  No earlier effective date is permitted by law in this case.  

Based on all the above evidence, entitlement to an effective date earlier than December 4, 2007 for the Veteran's service-connected PTSD is not warranted.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b).


ORDER

Entitlement to an effective date earlier than December 4, 2007 for a grant of service connection for PTSD is denied.


REMAND

The Veteran contends that his PTSD is worse than what is reflected by the currently assigned ratings.

The Veteran was last afforded a VA examination to evaluate the severity of his PTSD in April 2011.  Since then, he has testified about a "very violent incident" when he hurt his family.  He stated that his PTSD is ruining his family life and that he has "crazy stuff" going on in his head.  In light of these allegations suggesting a possible worsening of his PTSD and given the length of the intervening period since his past examination, another VA examination is indicated.

Further, VA treatment records since December 2009 are not associated with the claims file.  Because any such records are constructively of record, and may be pertinent to the matter at hand, they must be sought.  38 C.F.R. § 3.159(c)(2).  In addition, the Veteran testified that he saw a therapist at the "Vet Center at the Bronx."

Accordingly, the case is REMANDED for the following actions:

1.  Secure for the record any updated treatment records regarding the Veteran's PTSD, including VA treatment records dated from December 2009, and records from the Vet Center in the Bronx.

2.  The RO should arrange for an appropriate examination to determine the current severity of his PTSD.  The entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination.  All special tests and clinical findings should be clearly reported to allow for application of VA rating criteria.

The examiner must explain the rationale for all opinions.

3.  The RO should then review the record and readjudicate the PTSD claim remaining on appeal.  If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the opportunity to respond.  The case should then be returned to the Board, if in order, for further appellate review.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
M.C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs