Citation Nr: 1541155 Decision Date: 09/24/15 Archive Date: 10/02/15 DOCKET NO. 14-08 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date prior to May 24, 2010, for the award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to December 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The record before the Board consists of a rebuilt claims file and electronic records included within Virtual VA and the Veterans Benefits Management System. FINDINGS OF FACT 1. The Veteran's initial claim of entitlement to service connection for PTSD was denied in an unappealed rating decision issued in August 2004. 2. The RO denied the claim to reopen the previously denied claim in a May 2008 rating decision, and, upon reconsideration, continued the denial of the claim in an unappealed March 2009 rating decision. 3. The Veteran did not submit any pertinent evidence within the appeal period following the March 2009 rating decision, and no pertinent service records were received after the March 2009 rating decision. 4. Following the March 2009 rating decision, a formal or informal claim to reopen the claim of entitlement to service connection for PTSD was not received until May 24, 2010. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to May 24, 2010, for the award of service connection for PTSD, have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. As explained below, the determinative factor in this case is the date of the last final denial of the claim and when the claim to reopen was received. Any notice sent or evidence received after the receipt of the claim would not establish the Veteran's entitlement to an earlier effective date for service connection. Therefore, no further development is required before the Board decides this appeal. Legal Criteria In general, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The implementing regulation clarifies this to mean that the effective date of an evaluation and an 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." 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on new and material evidence (other than service department records) 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)(1)(ii). However, new and material evidence received prior to the expiration of the period to appeal a rating decision (one year after notice of the decision is sent) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A "claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits 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. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Factual Background and Analysis The Veteran contends that he is entitled to an effective date prior to May 24, 2010, for the grant of service connection for PTSD. In particular, he contends that the proper effective date for the disability is the date upon which he first filed a claim for service connection for PTSD in 2004. The RO initially denied the claim for service connection for PTSD in an August 2004 rating decision. The Veteran did not appeal the denial of the claim or submit additional evidence during the appeal period. In a May 2008 rating decision, the RO denied the Veteran's application to reopen the previously denied claim for service connection for PTSD on the basis of new and material evidence having not been received. The RO reconsidered the claim in March 2009 and continued the denial of service connection in a March 2009 rating decision. Although notified of the March 2009 rating decision, the Veteran did not appeal the denial of the claim or submit evidence during the appeal period. Thus, the March 2009 is the last final rating decision. On May 24, 2010, the Veteran filed the claim to reopen the previously denied claim of entitlement to service connection for PTSD. The RO granted the claim for service connection in the February 2013 rating decision and assigned an effective date of May 24, 2010, the date that the claim to reopen was received. Review of the record shows that there were no communication or treatment records that could be interpreted as a new claim for service connection for PTSD, formal or informal, received subsequent to the March 2009 rating decision and prior to May 24, 2010. Moreover, no pertinent service records were received subsequent to the March 2009 rating decision. Given the foregoing, there is no basis for the assignment of an effective date for the grant of service connection for PTSD prior to May 24, 2010. See 38 C.F.R. § 3.400(q)(1)(ii), (r); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) Because of the denial of the claim in the March 2009 rating decision, the earliest effective date that can be assigned in this case is the date of receipt of the Veteran's subsequent claim to reopen the PTSD claim. His most recent claim to reopen was filed on May 24, 2010, and he does not contend, nor does the evidence show, that, following the March 2009 rating decision, he filed a formal or informal claim to reopen prior to that date. Accordingly, May 24, 2010, is the earliest effective date that can be assigned for the grant of entitlement to service connection for PTSD. In reaching this decision, the Board has considered the Veteran's assertion that he was never notified of the August 2004 rating decision that initially denied his claim. He also asserts that his representative at that time did not inform him of VA's request that he provide more information regarding his claimed in-service stressors in order to support the claim. While sympathetic to the Veteran's position, the Board finds his arguments to be meritless and not a sufficient basis to assign an earlier effective date in this case. Indeed, his assertions in this regard are contradicted by the evidence of record. Although a copy of the actual notice is not included in the rebuilt claims file, the March 2009 rating decision indicates that the Veteran was provided notice of the August 2004 rating decision by way of an August 17, 2004, letter. Moreover, 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). The Veteran has not shown by clear evidence to the contrary that this presumption should be rebutted. Most significantly, the claim was subsequently denied in the unappealed March 2009 rating decision, wherein the RO explained the continued deficiency of sufficient evidence to support the claim. After receipt of the March 2009 rating decision, the Veteran did not file a formal or informal claim to reopen the PTSD claim until May 24, 2010. Because of this, by law, May 24, 2010, is the earliest effective date for the award of service connection for PTSD, and his arguments alleging a lack of notice fail. As no earlier effective date is permitted by law, the benefit sought on appeal must be denied. ORDER An effective date prior to May 24, 2010, for the award of service connection for PTSD is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs