Citation Nr: 1341565 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 12-27 235A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to an effective date earlier than June 2, 2009 for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION The Veteran represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from March 1968 to April 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the RO in Chicago, Illinois, which granted service connection for PTSD with an effective date of June 2, 2009. The Board has not only reviewed the physical claims file but also the file on the "Veterans Benefits Management System" and on the "Virtual VA" system to insure a total review of the evidence. The Veteran testified before the undersigned at an April 2013 Board videoconference hearing. A transcript has been associated with the file. FINDINGS OF FACT 1. The Veteran's original claim for service connection for PTSD was received by VA on November 18, 2003. 2. Ratings decisions of April 2004 and March 2005 denying service connection for PTSD did not become final. 3. Entitlement to service connection for PTSD arose prior to November 18, 2003. CONCLUSION OF LAW The criteria for an effective date of November 18, 2003 for service connection and compensation for PTSD are met. 38 U.S.C.A. §§ 5103, 5103A, 5110 (West 2002); 38 C.F.R. §§ 3.103, 3.159, 3.304, 3.400, 4.125, 19.28 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.103, 3.159. In this case, the earliest possible date permitted by the effective date regulations (date of receipt of claim) has been granted, so that an earlier effective date is not legally possible. This appeal has been resolved based on undisputed facts of the record as to the earliest date of claim received from the Veteran. No amount of notice or assistance in obtaining either records or medical examinations or opinions can alter the relevant fact of service connection claim date in this case. In this case, the law and not the evidence are dispositive of the claim, so further VCAA duties do not arise. In cases such as this, where a claim cannot be substantiated because there is no legal basis for the claim, or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to meet the duty to assist a claimant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith (Claudus) v. Gober, 14 Vet. App. 227 (2000), aff'd, 28 F.3d 1384 (Fed. Cir. 2002); see also VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). The Board finds that the record as it stands includes sufficient competent evidence to decide the appeal for earlier effective date. See 38 C.F.R. § 3.159(c)(4) . Earlier Effective Date for Service Connection The effective date of an award of service connection based on a claim received more than one year after a veteran's discharge from service will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). A date stamp demonstrates that VA received an original claim for service connection for PTSD on November 18, 2003. No prior claims for service connection for any disability are of record. The Veteran and his spouse testified before the undersigned to the effect that the Veteran had not filed for service connection prior to November 2003 because he was unaware of the potential benefits available. This claim was filed more than one year after the Veteran's 1971 discharge from service. Following development, the Chicago RO issued an April 2004 rating decision denying the November 2003 claim for service connection for PTSD. The Veteran was notified of the denial in May 2004. In July 2004, the RO received a statement submitted on the Veteran's behalf by the Veteran's Assistance Commission that stated "On behalf of [the Veteran] this Notice of Disagreement is given to notify you that we disagree with the decision made on April 8th 2004 in denying service connection for PTSD." The RO recognized that this was a Notice of Disagreement in a January 2005 deferred rating decision. Following more development, the RO issued a March 2005 rating decision continuing the denial of service connection, but did not issue a statement of the case in response to the July 2004 notice of disagreement. Once an appellant submits a notice of disagreement, VA must issue a statement of the case, no matter how much time passes. See Manlincon v. West, 12 Vet. App. 238 (1999) (stating that, where there is a NOD, the proper action is to remand the issue to the RO for issuance of SOC); Acosta v. Principi, 18 Vet. App. 53 (2004) (finding veteran's writing was a clear expression of disagreement and was sufficient to constitute a NOD, the NOD remains pending, and case must be remanded for VA to issue a SOC); Fenderson v. West, 12 Vet. App. 119 (1999) (the remedy for a timely NOD to is remand for VA to issue a SOC). On June 2, 2009, the RO received what it construed to be a claim to reopen service connection for PTSD; however, because the Veteran had entered a timely notice of disagreement, the April 2004 and March 2005 rating decisions did not become final. The RO assumed the prior rating decisions were final to require that the claim be reopened and, under this assumption, found that the June 2, 2009 claim was the earliest pending claim received after the prior final decision and that entitlement arose prior to June 2, 2009. In a December 2010 rating decision, the RO granted service connection for PTSD and assigned an effective date of June 2, 2009, reasoning that such date was later than the date entitlement arose. See 38 C.F.R. § 3.400(q), (r). The Board finds, however, that the April 2004 and March 2005 rating decisions did not become final because a notice of disagreement was received as to the denial of service connection for PTSD within one year of notice of the adverse decision. No Statement of the Case was issued. See 38 C.F.R. § 19.28. That Notice of Disagreement was not resolved until the December 2010 rating decision granting the benefit sought. Jones v. Shinseki, 23 Vet. App. 122, 124 (2009). Therefore, finality did not attach to either the April 2004 or March 2005 rating decisions. Tablazon v. Brown, 8 Vet. App. 359, 361 (1995). The Board finds that the service connection claim received on November 18, 2003 is the earliest pending claim for service connection for PTSD. In light of the foregoing, the date of claim for service connection for PTSD is November 18, 2003. See 38 C.F.R. § 3.400(b)(2). The Board finds that entitlement to service connection arose prior to November 18, 2003. Service connection for PTSD generally requires in-service stressor event, diagnosis, and nexus between the event and diagnosis. See 38 C.F.R. §§ 3.304, 4.125. The Veteran's VA treatment records show that he was diagnosed with PTSD in July 1999. The July 1999 and subsequent treatment records relate the diagnosis to stressor events during service of driving a truck in Vietnam at night and coming under attack. The December 2010 grant of service connection relied on a confirmed stressor of driving in convoys while in Vietnam and coming under attack. Thus, the Veteran was entitled to service connection prior to the November 18, 2003 date of claim. See 38 C.F.R. §§ 3.304, 4.125. Entitlement to service connection for PTSD arose prior to November 18, 2003, although the Veteran did not file a claim for service connection until November 18, 2003. As the date of claim is November 18, 2003, the Board finds that the criteria for an earlier effective date of November 18, 2003 have been met. As November 18, 2003 is the later of the date of claim or date entitlement arose, service connection should be effective from November 18, 2003. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). The Board does not have jurisdiction to address the initial rating for the period prior to June 2, 2009. The RO will assign an initial rating when implementing this award of earlier effective date. The Veteran will have the opportunity to submit additional evidence and argument at that time and initiate an appeal as to the initial rating for the period from November 18, 2003 to June 2, 2009 if he is not satisfied with the rating that will be assigned. ORDER An effective date of November 18, 2003 for the grant of service connection for PTSD is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs