Citation Nr: 1337048	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  11-28 529	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota


THE ISSUE

Entitlement to an effective date earlier than November 17, 2010, for the grant of service connection for posttraumatic stress disorder.


REPRESENTATION

Appellant represented by:	Minnesota Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Sarah VanderWood, Associate Counsel





INTRODUCTION

The Veteran served on active duty from February 1969 to January 1971.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota.  Jurisdiction over the case was subsequently returned to the Medical and RO Center in Fargo, North Dakota.

If the Veteran believes that the May 2003 denial of service connection for PTSD was based upon a clear and unmistakable error by the RO, he should inform the RO of the specific error.  The RO should respond appropriately to any such claim of clear and unmistakable error filed by the Veteran.  


FINDINGS OF FACT

1.  Service connection for posttraumatic stress disorder (PTSD) was denied in a rating decision issued in May 2003; the Veteran did not appeal the decision or submit any pertinent evidence within the appeal period. 

2.  A claim to reopen the claim for service connection for PTSD was not received prior to November 17, 2010. 

3.  The Veteran's claim for service connection for PTSD was reopened on the basis of new and material evidence, other than service department records.


CONCLUSION OF LAW

An effective date earlier than November 17, 2010, is not warranted for the award of service connection for PTSD.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156, 3.400 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act (VCAA) 

The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is specifically to inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 

The plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). 

The record reflects that the Veteran was provided all required notice by a December 2010 letter, prior to the initial adjudication of the claim. 

As explained below, a determination of the proper effective date for the award of service connection is based on when the claim for the benefit was received and when entitlement arose.  The record reflects that all evidence pertinent to when the Veteran's entitlement arose is already of record, as is the documentation constituting the Veteran's claim to reopen the previously denied claim for service connection, which led to the grant of service connection.  The Veteran has not identified any outstanding evidence that could be obtained to substantiate his claim. T he Board is also unaware of any such evidence. 

In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claim were insignificant and not prejudicial to the Veteran. 

Accordingly, the Board will address the merits of the claim.

Legal Criteria

In the absence of an applicable exception, the effective date of an award of disability compensation based on a reopened claim after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(r).

However, a claim will be considered not final and will be readjudicated de novo if service department records that were available at the time of the original claim but not associated with the file were submitted after the claim became final.  38 C.F.R. § 3.156(c).  If service connection is granted in such a case, the effective date will be the date of the original claim. 

Analysis

The Veteran filed a claim for service connection for PTSD in May 2002.  The claim was denied in a May 2003 rating decision because there was no verified in-service stressor.  The Veteran did not appeal the decision or submit any pertinent evidence within the appeal period.

The Veteran filed a claim to reopen on November 17, 2010.  The claim was reopened and granted in March 2011, with an effective date of November 17, 2010, the date of receipt of the claim.  The Veteran contends he is entitled to an earlier effective date because he believes that he submitted an adequate stressor statement in September 2002 and that VA did not try very hard to verify it.  Thus, he contends the effective date of his award should be from the date of receipt of his original claim in May 2002.

The Veteran essentially claims that the VA did not fulfill its duty to assist because it did not adequately attempt to verify his in-service stressor.  However, he did not specifically allege clear and unmistakable error.  Furthermore, a failure to fulfill the duty to assist cannot constitute clear and unmistakable error.  As noted above, if the Veteran believes that the decision to deny his original claim was based on clear and unmistakable error, he should inform the RO of the alleged error.  

The Board notes that the Veteran submitted proof of his receipt of combat medals in April 2011.  However, documents he provided are not official service department records and the medals received by the Veteran were identified in Veteran's DD-214, which was of record at the time of the original rating decision.  Therefore, C.F.R. §3.156(c) does not apply, and the May 2003 rating decision remains final.

In sum, the evidence shows that the Veteran did not appeal the original denial of service connection or submit any pertinent evidence within the appeal period.  In addition, he did not file a claim to reopen prior to November 17, 2010, no official service department records were received after the May 2003 rating decision, and the claim was reopened on the basis of new and material evidence other than service department records.  Therefore, the currently assigned effective date of November 17, 2010, is the earliest possible effective for the award. 


ORDER

An effective date earlier than November 17, 2010, for the grant of service connection for PTSD is denied.



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs