Citation Nr: 1751665	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  14-07 825	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to an effective date earlier than April 27, 2010, for the grant of a rating of 100 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Sarah Campbell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1967 to September 1970.  

This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA).  In that decision, the RO granted a 100 percent rating for PTSD, effective the July 17, 2012 date of claim for an increased rating.  In December 2012, the Veteran filed a timely notice of disagreement with the assigned effective date for the grant of the 100 percent rating.  In January 2014, the RO partially granted the Veteran's request, making the 100 percent rating effective April 27, 2010, which was the effective date of the grant of service connection.  As the Veteran had requested an effective date earlier than this date, the Board will not consider the RO's decision and full grant of the benefit sought, and will address whether an effective date earlier than April 27, 2010 is warranted for the grant of a 100 percent rating for PTSD. 

In his February 2014 substantive appeal (VA Form 9), the Veteran indicated that he wished to have a hearing before the Board in connection with his claim.  The Veteran was scheduled for a hearing in August 2017, but the Veteran did not appear and he did not request an additional hearing.  The June 2017 and August 2017 hearing letters were not returned as undeliverable.  Accordingly, the Veteran's hearing request is considered withdrawn.  See 38 C.F.R. § 20.704(d) (2017).


FINDING OF FACT

The 100 percent rating for the Veteran's PTSD is effective more than one year prior to the July 17, 2012 date of the claim for an increased rating for PTSD that was granted.
 

CONCLUSION OF LAW

The criteria for an effective date earlier than April 27, 2010, for the grant of service connection for PTSD, have not been met.  38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.400 (2017).
 
REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159.  As noted above, the claim for an earlier effective date arises from the Veteran's disagreement with effective date assigned in connection with the grant of a 100 percent rating for PTSD.  Where, as here, an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007).  Moreover, neither the Veteran nor his representative has raised any other issues with regard to the duty to notify or duty to assist, nor have any such issues been raised by the evidence of record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).


Analysis

The Veteran filed his initial claim for service connection for "post-Vietnam stress syndrome" in April 1986, which was denied in January 1987 due to the Veteran's failure to report to a VA examination.  The Veteran requested his examination be rescheduled in February 1987.  The RO denied his claim for an acquired psychiatric disorder in January 1988 on the basis that the Veteran did not have a diagnosis of PTSD.  The Veteran was notified in February 1988. 

In March 1993, the Veteran filed an application to reopen his claim for PTSD, anxiety, and depression.  An April 1993 rating decision denied the Veteran's application to reopen, based on the absence of a finding of a PTSD diagnosis and because the hospital summary showed treatment for a psychosis many years after service.  The Veteran was notified in May 1993.

The Veteran filed an application to reopen his claim for service connection for PTSD in April 1995.  The RO denied the Veteran's application to reopen his claim for service connection for PTSD based on the absence of new and material evidence in a July 1995 notification letter.

After being notified of each decision, the Veteran did not appeal this issue.  In addition, the Veteran did not submit new and material evidence within the one year appeal period following each decision rendered.  In this regard, the Board notes that if new and material evidence is received within one year after the date of mailing of an RO decision, it may be "considered as having been filed in connection with the claim which was pending at the beginning of the appeal period"; this prevents an initial determination from becoming final.  38 C.F.R. § 3.156(b); see Muehl v. West, 13 Vet. App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after RO decision rendered RO decision nonfinal).  Accordingly, each decision became final.  See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 

The Veteran filed his application to reopen his claim for a psychiatric disorder, to include bipolar disorder, paranoid schizophrenia, psychotic disorder, and schizophrenic affective disorders in April 2010.  A September 2010 rating decision denied the Veteran's claims for service connection for these disabilities and reopened his claim for service connection for PTSD, but denied it on its merits.  The Veteran also did not appear for his scheduled VA examination.

In October 2010, the Veteran requested that he be rescheduled for an examination, which he underwent in February 2011.  The Veteran's claim for entitlement to service connection for PTSD was reopened and granted in a June 2011 rating decision, effective April 27, 2010 (the receipt date of the application to reopen).  The Veteran did not file a notice of disagreement with the effective date of the grant of service connection or the initial rating assigned within a year of this decision.  Therefore, these determinations became final.  38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103 (If VA denies a claim and the claimant fails to file an NOD within the one-year period following the decision, that decision becomes final).  Once that decision became final, the only ways to challenge the effective date of the grant of service connection for PTSD would be either a request for revision of a prior decision denying service connection for PTSD based on CUE or a request for revision of the June 2011 rating decision assigning the April 27, 2010, effective date based on CUE. However, the Veteran has not raised a specific theory of CUE in this regard.

After receipt of VA treatment records, the RO continued a 50 percent rating for PTSD in an April 2012 rating decision.  In July 2012, the Veteran filed a claim for an increased rating and specifically asked for a rating of 100 percent for his PTSD.  In October 2012, the RO awarded an increased rating of 100 percent, effective from the April 17, 2012 date of claim.  In January 2014, the RO granted an earlier effective date of April 27, 2010, which was the date of the application to reopen the claim for service connection for PTSD that had been granted.

As to whether the effective date of the 100 percent rating could be earlier than April 27, 2010, "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C. § 5110(b)(3). The effective date statute and its implementing regulations require that the evidence demonstrate that at least some portion of the increase in disability occurred within the one-year period prior to the date of the claimant's claim for increase to receive the benefit of an earlier effective date.  See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed.Cir.2010) (stating that section 5110(b)(2), now section 5110(b)(3), requires that "an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim ... to receive the benefit of an earlier effective date").  Thus, the earliest effective date for the grant of the 100 percent rating that was granted based on the April 17, 2012 date of claim would be in April 2011.  Given that the Veteran was awarded an effective date earlier than this, he is not entitled to an earlier effective date for the grant of the 100 percent rating based on the applicable statute and regulation. 

To the extent that the Veteran seeks an earlier effective date for the grant of service connection, such an argument would constitute an impermissible freestanding claim for an earlier effective date.  Rudd v. Nicholson, 20 Vet. App. 296 (2006) (VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed VA decision).  As noted above the Veteran did not file a timely appeal from the RO's June 2011 grant of service connection and assignment of an initial 50 percent rating effective the April 27, 2010 date of claim.  Consequently, any challenge to the effective date of the grant of service connection for PTSD or the assignment of an initial 50 percent rating must fail as a matter of law.  DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) ("Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded").

The Board notes that the above discussion reflects that the current effective date for the 100 percent rating is the same as the effective date of the grant of service connection which was based on the date of the application to reopen the claim for service connection for PTSD that was filed after multiple prior final denials of the same claim.  See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of CUE, [a veteran] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date").

For the foregoing reasons, the preponderance of the evidence is against an effective date earlier than April 27, 2010 for the assignment of a 100 percent rating for PTSD.  The benefit of the doubt doctrine is therefore not for application and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.






ORDER

Entitlement to an effective date earlier than April 27, 2010, for the grant of a rating of 100 percent for PTSD is denied.




____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs