Citation Nr: 1525386 Decision Date: 06/15/15 Archive Date: 06/26/15 DOCKET NO. 08-38 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for residuals of ganglion cyst removal, left foot. 2. Entitlement to an effective date earlier than May 6, 2010, for the award of service connection for posttraumatic stress disorder (PTSD) with schizoaffective disorder, bipolar type, with rapid cycling. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. C. Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1981 to January 1984 and January 1991 to April 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. During the pendency of the appeal, the case was transferred to the jurisdiction of the RO in Huntington, West Virginia. In April 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge (VLJ). FINDINGS OF FACT 1. During his April 2015 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that a withdrawal of his claim of entitlement to an increased rating for residuals of ganglion cyst removal, left foot, is requested. 2. Claims for service connection for PTSD were denied in decisions dated March 1993, August 1993, August 1995, January 1997, March 1999, September 2002, and June 2008. The Veteran did not complete an appeal with regard to any of these decisions, nor has he filed a claim for revision of any denial of service connection based upon CUE; thus, the decisions are final. 3. Since the last final denial of service connection, the record shows that the Veteran next communicated in writing his desire to file a claim for service connection for PTSD with depression on May 6, 2010. 4. In September 2010, the RO granted service connection for PTSD with schizoaffective disorder, bipolar type, with rapid cycling, effective May 6, 2010. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran's claim of entitlement to an increased rating for residuals of ganglion cyst removal, left foot, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 2. An effective date earlier than May 6, 2010, for the grant of service connection for PTSD with schizoaffective disorder, bipolar type, with rapid cycling, is not warranted. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Withdrawal of Claim for an Increased Rating The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2014). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran withdrew his appeal with regard to his entitlement to an increased rating for residuals of ganglion cyst removal, left foot, and hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this matter and the appeal is dismissed. Under Hanson v. Brown, 9 Vet. App. 29 (1996), this claim no longer exists. II. Claim for an Earlier Effective Date A. Duties to Notify and Assist The resolution of the claim for an earlier effective date for the grant of service connection is based upon the application of the law to undisputed facts. Consequently, no discussion of VA's duties to notify and assist is necessary in this regard. See Mason v. Principi, 16 Vet. App. 129 (2002). As previously acknowledged, the Veteran was afforded a hearing before the undersigned VLJ in April 2015, during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Board hearing, the VLJ stated the issues on appeal, and the VLJ and the Veteran's representative solicited information regarding the evidence that was lacking in order to substantiate the Veteran's claim. In addition, the VLJ sought to identify any pertinent evidence that might substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. B. Merits of the Claim General Legal Principles Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2014). The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. Additionally, 38 U.S.C. § 5101(a) provides that "A specific claim in the form prescribed by the Secretary . . . must be filed in order for benefits to be paid or furnished to any individual." In McTighe v. Brown, 7 Vet. App. 29 (1994), the Court of Appeals for Veterans Claims (Court) remarked that 38 U.S.C.A. § 5110 and 38 U.S.C.A. § 5101 clearly establish that an application must be filed. The VA administrative claims process recognizes formal and informal claims. A formal claim is "a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary." 38 C.F.R. § 3.1(p) (2014). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2014). It must "identify the benefit sought." Id. Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Notably, an application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. 38 C.F.R. § 3.400(q); see Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("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."). "The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Sears v. Principi, 16 Vet. App. 244, 248 (2002). Thus, the effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). For the Veteran to be awarded an effective date based on an earlier claim that became final and binding, he has to collaterally attack the prior decision and show there was clear and unmistakable error (CUE) in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Evidence and Analysis The Veteran alleges that the grant of service connection for PTSD should date back to August 2002, which represents the date he contends he was diagnosed with PTSD at a VA Compensation and Pension examination. Review of the claims file reveals that the Veteran was originally denied service connection for PTSD in March 1993. The RO determined that although the Veteran had a diagnosis of PTSD, VA could not corroborate the occurrence of specific in-service trauma sufficient to support his claim, such as evidence of a life-threatening stressor. In so finding, the RO noted the Veteran's PTSD was attributable to his emotional reaction to his wife's miscarriage. The Veteran was notified of this decision and of his appellate rights by letter dated April 2, 1993. He did not appeal, and no new and material evidence, including new claims, was received within one year of the decision. Therefore, the March 1993 decision is final. 38 U.S.C.A. § 7105(b)(2)(c) (West 2014); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.201, 20.302(a) (2014). Subsequent rating, Board, and hearing officer decisions dated August 1993, August 1995, January 1997, and March 1999 denied additional claims for service connection for PTSD on the ground that the evidence failed to corroborate a stressor that was recognized as a cause of PTSD. During this period, the Veteran's reported stressors included being abandoned in the desert and attending the funeral of a fellow solder. Again, after being apprised of his appellate rights, the Veteran did not appeal these decisions nor was new and material evidence received within one year of these decisions. Thus, they are final as well. 38 U.S.C.A. §§ 7104, 7105(b)(2)(c) (West 2014); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.201, 20.302(a). In rating decisions dated September 2002 and June 2008, the RO declined to reopen the Veteran's claim for service connection for PTSD on the ground that new and material evidence regarding the verification of alleged stressors was not associated with the Veteran's file since the prior final denial. Again, the Veteran did not appeal these decisions and new and material evidence was not received within one year. These decisions are final. The Veteran filed a claim to reopen his claim for service connection for PTSD in May 2010. Based on an August 2010 VA examination during which an examiner found that the Veteran's symptoms meet the criteria for a diagnosis of PTSD based on his Gulf War experiences and fear of hostile military or terrorist activity, the RO granted service connection for PTSD in a September 2010 rating decision and assigned an effective date of May 6, 2010, which is the day VA received his claim to reopen. With regard to the basis for the RO's grant of service connection for PTSD, the Board notes that VA amended its rules for adjudicating claims for service connection for PTSD in 2010. 38 C.F.R. § 3.304(f) was amended to reduce the evidentiary burden of establishing a stressor for a PTSD claim when it is related to a fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f); see generally Stressor Determinations for Posttraumatic Stress Disorder, Final Rule, 75 Fed. Reg. 39843 (July 13, 2010), codified at 38 C.F.R. § 3.304(f)(3). The Supplementary Information in the announcement of the Final Rule indicated that "VA will not apply the rule to claims that were finally denied before the effective date of the rule unless new and material evidence is submitted," and "[t]he change in the evidentiary standard for establishing occurrence of an in-service stressor would not constitute a basis on which to reopen a finally denied claim for service connection for PTSD because it is procedural in nature and does not effect a substantive change in the law governing service connection for disabilities." 75 Fed. Reg. at 39851. Furthermore, VBA Training Letter 10-05 (July 16, 2010) provides: "To reopen a claim under new § 3.304(f)(3), VA will accept a veteran's lay statement regarding an in-service stressor-'fear of hostile military or terrorist activity'-as sufficient to constitute new and material evidence for the purpose of reopening a previously denied claim, if the veteran's record otherwise shows service in a location involving exposure to 'hostile military or terrorist activity.'" Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a) (2014). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims. Id.; see also McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). Here, the May 6, 2010, effective date assigned by the RO predates the amendment to 38 C.F.R. § 3.304(f); thus, an earlier effective date cannot be assigned. Overall, the preponderance of the evidence is against the claim for an earlier effective date for the Veteran's service connected PTSD with schizoaffective disorder, bipolar type, with rapid cycling. The appeal of the effective date assigned must be denied as a matter of law and the benefit-of-the-doubt rule does not apply. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law); see also 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2014). ORDER The appeal as to the Veteran's entitlement to an increased rating for residuals of ganglion cyst removal, left foot, is dismissed. Entitlement to an effective date earlier than May 6, 2010, for the award of service connection for PTSD with schizoaffective disorder, bipolar type, with rapid cycling, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs