Citation Nr: 1339367	
Decision Date: 12/02/13    Archive Date: 12/13/13

DOCKET NO.  10-35 420	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois



THE ISSUES

1.  Entitlement to an effective date earlier than July 9, 2008, for the grant of service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to a rating in excess of 30 percent for PTSD.



ATTORNEY FOR THE BOARD

K.S. Hughes, Counsel







INTRODUCTION

The appellant is a Veteran who served on active duty from September 1966 to September 1968.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for PTSD, rated 30 percent, effective July 9, 2008.

AMVETS had been listed as the Veteran's representative.  In correspondence dated in August 2013 that organization withdrew its power of attorney in these matters.  The Veteran received a copy of that correspondence.  There has been no further communication from the Veteran regarding representation; therefore, he is considered to be appearing before the Board pro se.

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


FINDING OF FACT

The first communication to VA from the Veteran indicating that he was seeking service connection for PTSD was received on July 9, 2008 (more than one year after his separation from active duty).


CONCLUSION OF LAW

An effective date prior to July 9, 2008, for the award of service connection for PTSD is not warranted.  38 U.S.C.A. §§ 5101(a), 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 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. 472 (2006), aff'd. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  An August 2008 letter notified the Veteran of how VA determines the effective date for an award of service connection.  It is not alleged that notice in this case was less than adequate.  See Goodwin v. Peake, 22 Vet. App. 128   (2008). 

In a claim challenging the effective date of an award, the critical evidence is generally what was in the record when the award was made (and when it was received).  Generally, development of the evidentiary record is not indicated unless pertinent evidence constructively of [but not associated with the] record is identified.  The appellant has not identified any evidence pertinent to the instant appeal that is outstanding. 

Moreover, the Court has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated.  The VCAA does not affect matters on appeal, as here, where the question is limited to statutory interpretation.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000).  

Legal Criteria, Factual Background, and Analysis

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)(VA must review the entire record, but does not have to discuss each piece of evidence.)  Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim.

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  The exception to the rule is when such claim is received within one year after the Veteran's separation from service, in which case the effective date of the award is the day following separation from service.  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).  A "claim" or "application" is 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).  An informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a).  If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155. 

The Veteran was separated from active duty in September 1968.  His initial communication with VA on any matter following his separation from service was his VA Form 21-526 (original claim of service connection for PTSD), received July 9, 2008, nearly 40 years after his discharge from service.  

The July 9, 2008 effective date for the grant of service connection was determined on the basis that that was the date of receipt of the claim of service connection for PTSD.  There is no prior claim seeking service-connection for PTSD, either formal or informal, in the record.  The Veteran does not allege that he filed a claim of service connection for PTSD prior to July 9, 2008.  Rather, he argues that he and his family "have suffered with this illness shortly after [his] honorable release from the military and [they] continue to suffer today."  He requests that his benefits be "retroactive from inception of the program."  See April 2009 Notice of Disagreement.  

As the July 9, 2008 claim for service connection for PTSD is the earliest communication from the Veteran to VA seeking service connection for PTSD, there is no evidentiary support or legal merit for his claim seeking an earlier effective date for the award of such benefit.  In the absence of a formal or informal claim for this benefit having been filed prior to July 9, 2008, he is not entitled to an effective date of award earlier than that date.  The Court has held that where the law not the evidence is dispositive, the Board should deny the appeal because of an absence of a legal merit or the lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).


ORDER

An effective date prior to July 9, 2008, for the grant of service connection for PTSD is denied.


REMAND

A review the record found that further development is necessary for VA to satisfy its duty to assist the Veteran in the development of his claim.

The November 2008 VA examiner noted that the Veteran began mental health treatment with a private physician who prescribed zoloft for depression.  Records of such treatment are not in the claims file (or in Virtual VA); they are pertinent evidence in the matters at hand, and must be secured.

Accordingly, the case is REMANDED for the following action:

1.  The RO should ask the Veteran to identify the provider(s) of any mental health evaluation or treatment he has received, to specifically include the private provider who prescribed Zoloft, as was noted by the November 2008 VA examiner, and to provide all releases necessary for VA to secure any private records of such treatment or evaluation.  The RO should obtain complete records of all such treatment and evaluation from all sources identified.  If any records requested are unavailable, the reason must be explained for the record.

2.  The RO should then review the record, arrange for any further development suggested by the additional records received (e.g., if they present a disability picture inconsistent with what was found on VA examination, arrange for another VA examination to reconcile the conflict), and re-adjudicate the claim.  If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further 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. 2013).


______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs