Citation Nr: 1512657	
Decision Date: 03/25/15    Archive Date: 04/01/15

DOCKET NO.  13-03 272	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to an effective date earlier than August 15, 2010, for an award of service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to an initial evaluation in excess of 70 percent for PTSD.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Gallagher, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1968 to August 1973.

This appeal is before the Board of Veterans' Appeals (Board) from a September 2011 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO).

The issue of entitlement to an initial evaluation in excess of 70 percent for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran first filed a claim for service connection for PTSD in April 2002.  This claim was denied in an October 2002 rating decision.  The Veteran did not appeal this decision or submit any evidence within one year of the decision, and it therefore became final.

2.  The Veteran filed his second claim for service connection for PTSD in June 2008.  This claim was denied in a September 2008 rating decision.  The Veteran did not appeal this decision or submit any evidence within one year of the decision, and it therefore became final.

3.  The Veteran filed his third claim for service connection for PTSD on August 15, 2010.  A September 2011 rating decision granted service connection effective that date.  A statement regarding his claimed stressors was not submitted by the Veteran prior to August 15, 2010.


CONCLUSION OF LAW

The criteria for an effective date prior to August 15, 2010, for an award of service connection for PTSD have not been met. 38 U.S.C.A §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  There are certain instances where the VCAA does not apply because the issue presented is solely one of statutory interpretation and/or the claim is barred as a matter of law.  See Smith v. Gober, 14 Vet. App. 227, 230 (2000) (claim that a Federal statute provides for payment of interest on past-due benefits), aff'd, 281 F.3d 1384 (Fed. Cir. 2002).  This is the situation in the instant appeal, where the facts are not in dispute and resolution of the claim is wholly dependent on interpretation of the applicable laws and regulations.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (June 23, 2004).

Merits

The Veteran seeks an effective date earlier than August 15, 2010, for an award of service connection for PTSD.

Generally, the effective date of an award of a service connection claim, including a claim reopened after a final disallowance, is the date of receipt of a claim or the date entitlement arose, whichever is later.  38 U.S.C.A § 5110(a); 38 C.F.R. §§ 3.400, 3.400(q)(2).  

A claim is a formal or informal communication in writing requesting 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 VA benefits from a claimant or representative may be considered an informal claim.  Such informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a).

A reopened claim is any application for a benefit received after final disallowance of an earlier claim.  38 C.F.R. § 3.160(e).  The effective date of an award of disability compensation based on new and material evidence received 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(q)(2).  The effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(r). 

In this case, the Veteran's original claim for service connection for PTSD was filed in April 2002.  This claim was denied in an October 2002 rating decision.  The Veteran did not appeal this decision or submit any evidence within one year of the decision, and it therefore became final.  38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.1103.  The Veteran filed an application to reopen his claim for service connection for PTSD in June 2008.  This claim was denied in a September 2008 rating decision.  The Veteran did not appeal this decision or submit any evidence within one year of the decision, and therefore it too became final.

The Veteran filed another claim to reopen his PTSD service connection claim on August 15, 2010.  Service connection was granted in a September 2011 rating decision with an effective date of August 15, 2010.

Since the Veteran did not file a timely notice of disagreement with the April 2002 and September 2008 rating decisions, nor did he submit new and material evidence during either appeal period, those decisions became final, and are not subject to revision in the absence of a finding of clear and unmistakable error.  38 U.S.C.A. §§ 5109A, 7104; Rudd v. Nicholson, 20 Vet. App. 296 (2006).  Thus, the September 2008 decision is a legal bar to an effective date prior thereto.  The earliest date after the September 2008 rating decision that the Veteran expressed an intent to reopen his claim is August 15, 2010, which is the presently assigned effective date.  Under the controlling law and regulations outlined above, the award of compensation based on a reopened claim may be no earlier than the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(q)(2).

The Board notes that in his October 2011 notice of disagreement, the Veteran stated that all of the relevant evidence VA used to grant service connection had been supplied in conjunction with his April 2002 claim.  The Veteran, however, was fully notified of appeal procedure in letters dated November 2002 and September 2008 informing him of the decisions.  In addition, the claim was not eventually granted on the basis of the new addition of service department records.  38 C.F.R. § 3.156(c).  As such, no date earlier than August 15, 2010 can be assigned.

Based on the foregoing, the Board finds that the August 15, 2010 date of the claim is the appropriate effective date, because even if the date that the entitlement arose could be found to precede it, the latter of the two dates controls.  38 C.F.R. § 3.400.  Accordingly, the claim must be denied.  See 38 C.F.R. § 3.400(q)(2), (r); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997).


ORDER

An effective date prior to August 15, 2010, for an award of service connection for PTSD is denied.


REMAND

In the September 2011 rating decision subject to this appeal, the RO assigned the Veteran a 10 percent rating for PTSD.  The Veteran submitted an October 2011 notice of disagreement, in which he stated that he exhibits suicidal ideation, which he noted is listed under the criteria for a 70 percent rating.  The RO granted a 70 percent evaluation in a January 2013 rating decision, and determined that the decision satisfied the Veteran's disagreement in full with respect to the issue of increased rating.  Because the disagreement was deemed satisfied by the RO, it did not provide a statement of the case with respect to this issue.

The Board finds that, although the Veteran mentioned a 70 percent rating in his notice of disagreement, the Veteran did not in any way indicate that this was the maximum rating he sought.  The Board therefore finds that the Veteran's disagreement has not been satisfied.  The receipt of the notice of disagreement vests jurisdiction with the Board for purposes of ensuring that a statement of the case is prepared on this issue.  Where a notice of disagreement is filed, but a statement of the case has not been issued, the Board must remand the claim to direct that a statement of the case be issued.  See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file any additional medical evidence that may have come into existence but has not been associated with the record.

2.  Provide a statement of the case to the Veteran and his representative regarding the issue of entitlement to an initial evaluation in excess of 70 percent for PTSD.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
R. FEINBERG
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs