Citation Nr: 1428596 Decision Date: 06/24/14 Archive Date: 07/03/14 DOCKET NO. 07-05 328 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to an effective date earlier than April 28, 2004, for the award of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than April 28, 2004, for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disability (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.M. Ivory, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2004 rating decision. The November 2004 rating decision granted the Veteran service connection for PTSD and assigned an initial rating of 70 percent effective April 28, 2004, and a TDIU rating effective April 28, 2004. The Veteran then filed a notice of disagreement (NOD) in September 2005 on the effective date of the grant of service connection and TDIU rating, and the RO issued a statement of the case (SOC) in January 2007. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in February 2007. In November 2010 the Board remanded the issues on appeal in order for the inextricably intertwined issue of whether there was clear and unmistakable error (CUE) in the January 1995 rating decision; the RO denied the claim in the December 2012 rating decision. The Veteran has not appealed this December 2012 rating decision; therefore, it is not before the Board. In April 2013 the Board remanded the issues on appeal in order for the Veteran to be scheduled for a hearing before the Board. In April 2014, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A copy of the transcript is associated with the Veteran's claims file. In addition to the paper claims file, the Veteran has a paperless, electronic file in Virtual VA. With the exception of the December 2013 brief by the Veteran's representative and a copy of the April 2014 hearing transcript, the Virtual VA file contains no documents pertinent to the present appeal in addition to those contained in the paper claims file. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate each claim on appeal has been accomplished. 2. In a January 1995 rating decision, the RO denied the Veteran service connection for PTSD. Although, after receiving notice of the denial, the Veteran filed an NOD in February 1995, the Veteran did not file a substantive appeal to perfect his appeal after the issuance of a June 1995 SOC. 3. There was no pending claim for service connection for PTSD between the January 1995 rating decision and the Veteran's April 28, 2004, request to reopen his previously denied claim. 4. As there is no legal basis for award the award of service connection for PTSD prior to April 28, 2004, it follows that there is likewise no basis for an award of a TDIU due to PTSD (the Veteran's only service-connected disability), CONCLUSIONS OF LAW 1. The claim for an effective date earlier than April 28, 2004, for the award of service connection for PTSD is without legal merit. 38 U.S.C.A. §§ 5103, 5103A, 5110, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.105, 3.151(a), 3.155, 3.156, 3.400, 20.302(a), 20.1103 (2013). 2. The claim for an effective date earlier than April 28, 2004, for the award of a TDIU due to service-connected disability (is without legal merit. 38 U.S.C.A. §§ 1155, 5110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty 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). In the present appeal, the January 2007 SOC included citation to the provisions of 38 C.F.R. § 3.400 and discussion of the legal authority governing effective dates for awards of service connection. The January 2007 SOC explained the reasons for the denial of the Veteran's request for an earlier effective date in this case. Moreover, the Veteran has been afforded the opportunity to present evidence and argument with respect to the claim herein decided, to include during the April 2014 hearing. As for the Board hearing, in Bryant v Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103 (c)(2) requires that the individual (interpreted include a Veterans Law Judge (VLJ)) who chairs a hearing must fulfill two duties: (1) to fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. Here, during the April 2014 hearing, the undersigned identified the issues on appeal, and elicited pertinent testimony concerning when the Veteran filed his claims for service connection and for a TDIU rating and about his previous claims for service connection. Moreover, the Board hearing transcript, in particular, also reflect appropriate exchanges between the Veteran, his representative and the undersigned pertaining to the Veteran's service-connected disability and the bases for denial of the claim. While the submission of specific, additional evidence was not explicitly suggested, as discussed, these effective date claims primarily hinge on the date of claim, not specific evidence. Hence, any omission is this regard was harmless. As such, the Board finds that the requirements of 38 C.F.R. 3.103(c)(2) have been met, and that the hearing was legally sufficient. The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the appellant. As will be explained below, the claims lack legal merit. As the law, and not the facts, is dispositive of the claims, the duties to notify and assist imposed by the VCAA are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). II. Analysis Generally, the effective date for an award of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013). The effective date for an award of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is 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) (1)(ii), (r). The basic pertinent to the matters on appeal are not in dispute. In April 1994, the Veteran filed a claim for service connection for PTSD. In a January 1995 rating decision, the RO denied service connection for PTSD, as well as other disabilities As explained in more detail below, the Veteran filed an NOD with the denial, but did not perfect his appeal with a timely substantive appeal following the issuance of the SOC. In April 2004, the Veteran filed a petition to reopen his claim for service connection for PTSD. In the November 2004 rating decision on appeal, the RO granted service connection and assigned an initial, 70 percent rating for PTSD, as well as granted a TDIU due to service-connected disability ( PTSD ). Each award was made effective April 28, 2004, the date on which he filed his request to reopen his previously denied claim. While the Veteran asserts his entitlement to an earlier effective date for the awards of service connection for PTSD and a TDIU, considering the record in light of the governing legal authority, the Board finds that no earlier effective date is assignable. First, addressing the finality of the January 1995 rating decision, the record reflects that the Veteran was notified of the RO's January 1995 decision in a January 1995 letter. The Veteran filed a NOD in February 1995, and an SOC was issued in June 1995; the letter accompanying the SOC informed the Veteran of how to file a substantive appeal, and a VA-Form 9 was provided for that purpose. However, the Veteran did not file a substantive appeal. An appeal requires the filing of a notice of disagreement by on behalf of a claimant and a substantive appeal, after an SOC is provided. See 38 U.S.C.A. § 7105(a) (West); 38 C.F.R. § 20.200 (2013). If no appeal is filed within the time limit provided, the determination becomes final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.302. The Veteran testified that he supplied all of the information needed for his claim service connection for PTSD prior to the January 1995 rating decision and that this was the same information that was later used to grant his claim of service connection for PTSD. However, given the finality of the 1995 rating action, this assertion is not availing, as it does not entitle him to an earlier effective date. The Veteran also testified that the RO "dropped his claim and that the RO sent the information to the wrong address. However, as the Board noted during the Veteran's hearing, his address was corrected prior to the January 1995 rating decision by a July 1994 Report of Contact; all subsequent correspondences were sent to the appropriate address. In addition, the June 1995 letter informed the Veteran that in order for him to appeal his case, he had to file a substantive appeal; a VA Form 9 accompanied the letter. As noted, while the Veteran clearly filed a notice of disagreement with the January 1995 denial-the first step in the appellate process-there is no evidence whatsoever to indicate that he actually filed a substantive appeal to perfect his appeal after the issuance of the June 1995 SOC-the last step in the appellate process. Notably, there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). Therefore, it must be presumed that VA properly discharged its official duties by properly handling claims submitted by the Veteran. The presumption of regularity is not absolute; it may be rebutted by the submission of "clear evidence to the contrary." Statements made by the Veteran are not the type of clear evidence to the contrary which would be sufficient to rebut the presumption of regularity. Jones v. West, 12 Vet. App. 98 (1999), Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Ashley v. Brown, 2 Vet. App. 62, 64 (1992). The presumption of regularity in this case is not rebutted, because the only evidence to the contrary are the Veteran's assertions that he appealed his claim. Because the Veteran did not perfect an appeal of the January 1995 denial, understandably, no further action was taken on that matter.. Moreover, no pertinent exception to finality applies in this case. No new and material evidence pertinent to the matter of service connection for PTSD or additional service records were received during the remainder of the appellate period following the January 1995 denial, requiring readjudication of the claim. See 38 C.F.R. § 3.156(b) and (c). Also, while a finding of clear and unmistakable error (CUE) could render the February 1995 rating decision non-final (see 38 C.F.R. § 3.105 (2013)), in a December 2012 rating decision, the RO determined that there was no CUE in the January 1995 rating decision denying service connection for PTSD; the Veteran did not appeal this December 2012 rating decision. Here, the question of CUE in the January 1995 rating decision has been resolved, and is not before the Board for consideration. The Board further notes that, between the date of the January 1995 final denial the and the April 2004 petition to reopen, there was no pending, undadjudicated claim pursuant to which service connection for PTSD could have been awarded. Indeed, between the June 1995 SOC issued following the January 1995 denial, the RO and the Veteran did communicate with respect to the June 1999 rating decision in which the RO granted nonservice-connected pension, denied special monthly pension, and proposed a finding of incompetency, and the July 1999 rating decision in which the RO found the Veteran not competent to handle the disbursement of funds. However, during this time frame, there was absolutely no communication from the Veteran even suggesting that he was seeking service connection for PTSD. Hence, there was no earlier, pending claim pursuant to which service connected for PTSD could have been granted. An application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. An application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. "The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application." Wright v. Gober, 10 Vet. App. 343, 346-47 (1997). For all the forgoing reasons, the Board finds that there is no legal basis to assign an earlier effective date for the award of service connection for PTSD. It logically follows, then, that there is likewise no legal basis to assign an earlier effective date for the award of TDIU due to PTSD-the Veteran's only service-connected disability-which was awarded on the basis of an "inferred" claim. See. e.g., Rice v. Shinseki, 22 Vet. App. 447 (2009). The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As, on these facts, no effective date earlier than April 28, 2004, for the award of service connection for PTSD, or for the award of a TDIU due to that disability, is assignable, the claims for earlier effective date must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date earlier than April 28, 2004, for the award of service connection for PTSD is denied. An effective date earlier than April 28, 2004, for the award of a TDIU due to service-connected disability (PTSD) is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs