Citation Nr: 1502837	
Decision Date: 01/21/15    Archive Date: 01/27/15

DOCKET NO.  12-30 288	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in New Orleans, Louisiana


THE ISSUE

Entitlement to an effective date earlier than March 23, 2010 for grant of service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant (the Veteran) is represented by: Disabled American Veterans 


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Cramp, Counsel


INTRODUCTION

The Veteran had active duty service from June 1968 to June 1970.  

This appeal comes before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the RO in New Orleans, Louisiana.

In June 2013, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge and accepted such hearing in lieu of an in-person hearing before a Member of the Board.  See 38 C.F.R. § 20.700(e) (2014).  A transcript of the hearing is associated with the claims file.

In adjudicating this appeal, the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the Virtual VA and VBMS systems to ensure a total review of the evidence.  


FINDING OF FACT

The earliest date of a pending claim of entitlement to service connection for PTSD is March 23, 2010; the date entitlement to service connection for PTSD arose is July 13, 2010, the effective date of the liberalizing law which provided a verified PTSD stressor.


CONCLUSION OF LAW

The criteria for assignment of an effective date earlier than March 23, 2010 for the grant of service connection for PTSD are not met.  38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5101 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.400 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran is seeking an earlier effective date for the grant of service connection for PTSD.  His essential contention, as gleaned from his hearing testimony and written correspondence, is that, although he did not appeal previous denials of the claim, he has pursued a claim since February 2002, and that should be reflected in the effective date for the ultimate grant of service connection.  

After a review of all of the evidence, the Board finds that, while there may be dispute as to the outcome of the appeal, there is no dispute as to the facts essential to resolution of this appeal.  Specifically, the Veteran does not contend that he appealed the denial of the claim in June 2002, or that he appealed subsequent denials in July 2002, May 2008, or September 2008.  He also does not contend that he submitted an application to reopen the claim subsequent to the September 2008 denial and prior to March 23, 2010.  

Also significant in this case, the grant of service connection was based on a liberalizing law which permitted the RO to accept as a confirmed stressor the Veteran's fear of hostile military or terrorist activity.  All previous denials were based at least in part on the absence of a verified stressor.  

The laws and regulations governing effective dates establish that, unless specifically provided otherwise, 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 therefor.  38 U.S.C.A. § 5110(a).  

The effective date of an award of disability compensation shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release.  38 U.S.C.A. § 5110(b)(1).  This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  See 38 C.F.R. § 3.400.  

A specific claim in the form prescribed by the Secretary of VA 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) (West 2002); 38 C.F.R. § 3.151(a).  A claim 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).  Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim.  Such an informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(a).  

Here, the RO denied the Veteran's February 2002 claim in a June 2002 rating decision.  The bases for that denial were (1) the absence of a PTSD diagnosis and (2) the absence of a verified stressor.  The Veteran responded to the denial with a completed stressor statement the same month.  The RO reviewed the claim in a July 2002 rating decision and denied reopening based on a lack of new and material evidence regarding the elements of (1) a PTSD diagnosis and (2) a verified stressor.  The Veteran did not appeal the June 2002 or July 2002 decisions and did not submit new and material evidence (or any evidence) within the appeal period following the July 2002 decision.  

An October 2006 VA Form 21-4138 pertained to Agent Orange exposure and diabetes mellitus, not to PTSD.  Correspondence received in January 2008 also addressed Agent Orange exposure and did not pertain to PTSD.  

The next correspondence addressing PTSD came in February 2008.  Reopening of the claim was denied in a May 2008 rating decision.  The basis for the denial was that there was still no verified stressor.  The Veteran did not appeal the May 2008 rating decision, but submitted additional evidence in response to that decision.  The RO also apparently obtained service personnel records.  In a September 2008 rating decision, the RO declined to reopen the claim based on the absence of a verified stressor.  The Veteran did not appeal the September 2008 decision.  The next correspondence comes in a February 2010 letter from the Veteran's representative attaching a VA Form 21-22.  This correspondence did not address any specific issue and is not a claim.  The next correspondence is the March 23, 2010 claim that forms the basis of the current effective date.  Thus, there is no pending claim prior to the March 23, 2010.  The prior claim was denied in September 2008, and the denial was not appealed.  Moreover new and material evidence regarding the unestablished fact of a verified stressor was not received within the appeal period.  

As noted above, the RO granted the claim in the September 2010 decision based on the change in VA regulations which liberalized the criteria for verifying a stressor, which was a basis for all prior denials.  Effective July 13, 2010, VA amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor.  Specifically, the amendment to 38 C.F.R. § 3.304(f) provides that, if a stressor claimed by a veteran is related to such veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  

In essence, the basis for the grant of service connection in the September 2010 decision was this liberalizing law.  The Veteran has never submitted evidence sufficient to verify a specific stressor.  Under the facts of this case, without the amendment to the PTSD regulations, the claim would still not have been granted.  

VA regulations provide that "Where...compensation...is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such an award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue."  38 C.F.R. §§ 3.114(a), 3.400(p) (2014).

While the Board understands the Veteran's concern that he had been seeking service connection for many years, on these undisputed facts, the Board finds no legal basis for the assignment of an effective date for the award of service connection prior to March 23, 2010.  The claim filed on that date is the earliest correspondence from the Veteran in the claims file regarding service connection for PTSD following the unappealed September 2008 decision.  Moreover, the grant of service connection is fundamentally based on the liberalizing law which became effective on July 13, 2010.  Notwithstanding the fact that the RO assigned an earlier date of March 23, 2010, VA law in fact prohibits the assignment of an effective date earlier than July 13, 2010.

Duties to Notify and Assist

The Veterans Court has held that an appellant claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law.  See Nelson v. Principi, 18 Vet. App. 407, 410 (2004).  

Here, no additional development could alter the evidentiary or procedural posture of this case.  Therefore, no notice under the Veterans Claims Assistance Act of 2000 (VCAA) is necessary.  See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant).  

Moreover, the Board finds that it is not necessary to obtain a medical opinion or medical records in order to substantiate the claim as no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C. § 5103A(a)(2); Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008).

Furthermore, the Board finds that general due process concerns have been satisfied in connection with this appeal.  See 38 C.F.R. § 3.103 (2014).  The appellant was provided with ample opportunity to submit evidence and argument in support of his claim and was given the opportunity to present testimony regarding his claim. 

When conducting a hearing, a VA hearing officer, to include a Veterans Law Judge, must suggest that a claimant submit evidence on any issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103.  The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record.  

Here, during the Board hearing, the appellant was notified of the reasons for the denial of the claim and of the pertinent law applicable to the assignment of effective dates where eligibility is established by a liberalizing law.  Such actions supplement the VCAA and comply with 38 C.F.R. § 3.103.




ORDER

An effective date for the grant of service connection for PTSD earlier than March 23, 2010 is denied.  



____________________________________________
JONATHAN B. KRAMER 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs