Citation Nr: 1751914 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-04 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an effective date earlier than November 18, 2011, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1968 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. FINDINGS OF FACT 1. The Veteran initially filed a claim for entitlement to service connection for a nervous disorder, to include PTSD, in November 1990. 2. In a February 1991 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a nervous disorder, to include PTSD, because it found that a diagnosis of PTSD was not shown, and the Veteran's diagnosed major depression was first noted at a time too remote from service to be related to his active duty service. 3. Although the Veteran appealed the February 1991 rating decision in a July 1991 notice of disagreement (NOD), the RO issued a statement of case (SOC) in August 1991 denying the Veteran's service connection claim for PTSD and major depression. The Veteran did not perfect an appeal or submit any new and material evidence within one year; thus, the February 1991 rating decision became final. 4. The next claim for service connection for an acquired psychiatric disorder, to include PTSD, was received by VA on November 18, 2011; there is no evidence of any intervening claim. CONCLUSION OF LAW The criteria for an effective date prior to November 18, 2011, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5103(a), 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking an earlier effective date for the grant of service connection for PTSD. In his March 2013 NOD and in additional statements in support of his claim, he asserts that the grant of service connection should have been effective since 1970 as that is the first time he filed a claim for PTSD with VA. Alternatively, the Veteran and his representative contended in a January 2014 substantive appeal to the Board (VA Form 9) and an October 2017 statement that this claim should be effective May 8, 1990, as that is when the Veteran filed a formal claim for service connection for a psychiatric disability. The law regarding effective dates provides 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. § 5110(a). This statutory provision is implemented by a VA 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. For claims specifically reopened on the basis of new and material evidence after a final disallowance under 38 C.F.R. § 3.156(a), the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). 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 under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means 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). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155 (2017); 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, VA law provided that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. 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 veteran, it will be considered filed as of the date of receipt of the informal claim. Even with respect to informal claims, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (for claims received prior to March 24, 2015). In his March 2013 NOD, the Veteran contended that he filed a claim for service connection for PTSD in 1970. Apart from this lay statement, the record does not indicate that the Veteran filed any such claim for service connection prior to November 1990. The probative value of the Veteran's assertion that he filed a claim for service connection for PTSD in 1970 is greatly diminished by two facts. First, when the Veteran submitted a formal claim for service connection for PTSD in November 1990, he was asked on the VA Form 21-526, Veteran's Application for Compensation or Pension, whether he had previously submitted a claim for any benefit with VA, and he checked "Veteran's Educational Assistance." He did not check "Disability Compensation or Pension," which was one of the options. This is direct evidence that the Veteran did not submit a claim for compensation benefits prior to November 1990. Second, in 1970, PTSD was not a recognized medical disorder at the time of the claimed filing of the service connection claim. According to the VA website, in an article entitled, "PTSD History and Overview," by Matthew J. Friedman, MD, PhD (www.ptsd.va.gov/professional/PTSD-overview/ptsdoverview.asp), "In 1980, the American Psychiatric Association (APA) added PTSD to the third edition of its Diagnostic and Statistical Manual of Mental Disorders (DSM-III) nosologic classification scheme[.]" Alternatively, the Veteran and his representative contend that the effective date for the grant of service connection for PTSD should be May 8, 1990, as that is the date that VA received the Veteran's formal claim for service connection for this disability. Initially, the Board notes that the Veteran did file a formal claim (VA Form 21-526) for a nervous disorder, to include PTSD, in 1990; however, this application was received by VA on November 8, 1990, rather than May 8, 1990. In this application, the Veteran contended that he was treated for a nervous disorder in August 1969 and that he currently had PTSD. The November 1990 application was denied by a February 1991 rating decision after a January 1991 VA psychiatric examination showed that the Veteran did not have a diagnosis of PTSD. This examination report indicated that the Veteran had major depression. The February 1991 rating decision denied the Veteran's service connection claim because the Veteran did not have a diagnosed PTSD disability and his major depression was first noted at a time too remote from service to be related to his active duty service. The Veteran was notified of this determination in a February 1991 letter. In a July 1991 NOD, the Veteran appealed the RO's February 1991 rating decision. In an August 1991 SOC, the RO continued the previous denial of service connection for PTSD and major depression. The Veteran was informed of this denial by an August 1991 letter from VA and a separate August 1991 letter from a previous representative. The August 1991 letter was sent to the same address the Veteran provided on his application for benefits and on his NOD, and there is no indication that the SOC was returned as undeliverable. Therefore, the Veteran is presumed to have received it. In the SOC, VA informed the Veteran that he would need to perfect his appeal. The record does not show that the Veteran perfected an appeal or submitted any new and material evidence within one year of the February 1991 notification; thus, the February 1991 rating decision denying his service connection claim for PTSD and major depression became final. The record shows that the next claim for service connection for an acquired psychiatric disorder, to include PTSD, was received by VA on November 18, 2011, on a VA From 21-526, Veterans Application for Compensation and/or Pension. Based on this application, the RO afforded the Veteran a VA examination in February 2012, during which he was diagnosed with PTSD. Accordingly, the RO granted service connection for PTSD (also claimed as an acquired psychiatric disorder and sleep walking) in a February 2013 rating decision, and the effective date of service connection was the date VA received his claim, i.e., November 18, 2011. A thorough review of the evidence does not show that VA received any intervening claim for any acquired psychiatric disorder between the 1991 denial and the November 2011 application. Additionally, it must be noted that during the current appeal, VA requested the Veteran's personnel records, which copies were received on February 22, 2012. However, these are duplicates of the personnel records that were received on January 30, 1991. Thus, the provisions of 38 C.F.R. § 3.156(c) are not implicated. The Veteran has not alleged clear and unmistakable error (CUE) in the February 1991 rating decision. Rather, he contends that an earlier effective date for the grant of service connection for PTSD should be assigned because he was diagnosed with major depression at the time of the February 1991 denial. In support of his claim for an earlier effective date, the Veteran and his representative cite to the United States Court of Appeals for Veterans Claims' (Court) holding in Clemons v. Shinseki. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In that case, the Court addressed the scope of claims generally in regard to what is claimed versus what should be addressed by VA. Specifically, that veteran was not required to know the appropriate diagnosis of the mental disorder he suffered from, and the Court found that his claim could not be limited to the psychiatric diagnosis he identified given that he was a lay person and could not accurately diagnose his disability. Thus, the Court determined that VA was obligated to adjudicate the mental health disorder he had, and not the one he may have mistakenly identified due to his lack of knowledge. The Court further held that in determining the scope of a mental health disability the Board must consider a veteran's description of the claim, symptoms described, and the information submitted or developed in support of the claim. Id. at 5. To the extent that the Veteran asserts that under Clemons the effective date of the grant of service connection for PTSD should be prior to November 18, 2011, the Board disagrees. Initially, the Board notes that Clemons was decided in 2009, which is many years after 1991, and thus, its findings could not be binding on any decision made by the RO at that time. See Jordan v. Principi, 17 Vet. App. 261, 268 (2003) (noting that new interpretations of a statute can only retroactively affect decisions still open on direct review, not those decisions that are final). Further, even if the holding in Clemons was retroactive, the RO broadly interpreted and analyzed the Veteran's claim for service connection. The Veteran specifically filed a formal claim for a nervous disorder, to include PTSD, in November 1990. After the medical evidence showed which acquired psychiatric disorder the Veteran had and which he lacked, the RO specifically denied a claim for service connection for PTSD in 1991 because the evidence did not show that he was diagnosed with this disability at that time. The RO also denied a claim for service connection for major depression because the evidence did not show a causal link between the Veteran's active duty service and the first diagnosis of depression. Thus, the Court's holding in Clemons regarding the scope of a claim for a mental health disorder would not provide for an effective date prior to November 18, 2011, for the grant of service connection for PTSD. Overall, the evidence does not reflect that the Veteran filed any additional claim for service connection for an acquired psychiatric disorder following the February 1991 rating decision and August 1991 SOC until November 18, 2011, when he filed a VA Form 21-526. As a result of this application, the claim was reopened, granted on the merits, and awarded benefits effective November 18, 2011, the date the claim was received by VA. The applicable laws and regulations afford no equitable relief. See 38 U.S.C. § 7104(c) (2012); see also McCay v. Brown, 106 F.3d 1577, 1581 (1997) (VA cannot grant a monetary payment where Congress has not authorized such a payment or the recipient does not qualify for such a payment under applicable statutes). Thus, there is no basis on which an earlier effective date may be assigned for the disability on appeal, and the proper effective date is November 18, 2011. Accordingly, this appeal must be denied because the RO has already assigned the earliest possible effective date provided by law. See 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.155(a), 3.400. ORDER An effective date earlier than November 18, 2011, for the grant of service connection for PTSD is denied. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs