Citation Nr: 1753677 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 06-00 276A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date earlier than February 13, 2001, for the award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. R. Fletcher INTRODUCTION The Veteran had active service from May 1969 to May 1971 and November 1990 to April 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that (in pertinent part) granted service connection for PTSD, effective March 27, 2006. In February 2016, the Board (in pertinent part) granted an earlier effective date of February 13, 2001, for the award of service connection for PTSD. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In June 2017, the Court issued a memorandum decision that vacated the February 2016 Board decision with respect to the earlier effective date issue and remanded that issue to the Board for action in compliance with the instructions in the memorandum decision. FINDINGS OF FACT 1. On March 17, 1997, the RO received a claim seeking service connection for PTSD. 2. In response to a February 2000 rating decision that denied service connection for PTSD, the Veteran submitted a notice of disagreement (NOD) that was received by the RO on February 10, 2000. 3. Following the receipt of additional medical evidence, the RO again denied service connection for PTSD in a March 2000 rating decision. 4. A statement of the case (SOC) was never issued in response to the February 2000 NOD. 5. An April 2011 rating decision granted service connection for PTSD. CONCLUSION OF LAW The criteria for an effective date of March 17, 1997, but no earlier, for the grant of service connection for PTSD have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). With respect to the Veteran's effective date claim, no further notice is necessary under 38 U.S.C. § 5103(a)-compliant notice because the claim arises from the grant of service connection for the underlying disorder. The Board also finds that VA has fulfilled its duty to assist. All relevant, identified, and available evidence has been obtained. II. Earlier Effective Date Claim In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151. Prior to February 13, 2001 (as is pertinent to this claim), the term "claim" was defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2000). Any communication or action indicating an intent to apply for one or more benefits administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Here, the RO received an informal claim seeking service connection for PTSD on March 17, 1997. A February 2000 rating decision denied service connection for PTSD. In response, the Veteran submitted an NOD that was received by the RO on February 10, 2000. Following the receipt of additional medical evidence, the RO did not issue an SOC; rather, the RO again denied service connection for PTSD in a March 2000 rating decision. As noted above, the Veteran filed his claim for service connection for PTSD in March 1997, before the pertinent provisions of the regulation outlining the requirements for a valid withdrawal of an appeal was amended on April 18, 2003. Compare 38 C.F.R. § 20.204(c) (1996) (explaining that if an NOD was filed by the claimant, an authorized representative could only submit a withdrawal on the claimant's behalf if the claimant provided "express written consent") with 38 C.F.R. § 20.204(a) (2003) (removing the "express written consent" requirement); see also 68 Fed. Reg. 13,236 (Mar. 19, 2003). Under the regulation in effect in 1996, an NOD may be withdrawn in writing before a timely Substantive Appeal is filed. Withdrawal may be by the appellant or by his or her authorized representative, except that a representative may not withdraw either an NOD or Substantive Appeal filed by the appellant personally without the express written consent of the appellant. 38 C.F.R. § 20.204 (1996). In this case, the Veteran's representative sent him a letter in April 2000 and told him, "The man in charge of your claims(s) with the VA strongly suggests and I agree, that you allow the issues on remands [sic] to be handled first and then appeal the PTSD issue later if you insist on it. Let me know your thoughts on this matter." There is no visible stamp on this document indicating when it was received by VA, but the document was uploaded to the electronic claims file in January 2001. Thereafter, in a memorandum dated in April 2000, the Veteran's representative stated that the Veteran had called and agreed "not to appeal PTSD until pending remand action is complete." See Third Party Correspondence with receipt date of February 1, 2000 in electronic claims file. Resolving any ambiguity in the Veteran's favor, the Board finds these statements to be insufficient to satisfy the requirements of 38 C.F.R. § 20.204 (1996) for withdrawal of an NOD. In this regard, the two documents from the Veteran's representative do not show a clear intent to withdraw the PTSD claim. In fact, an argument could be made that the intent was to merely delay the adjudication of the claim until the other previously filed claims were resolved. Moreover, at no time did the Veteran ever submit any written statement of his own expressing written consent to withdraw the NOD. Thus, the timely February 2000 NOD was still valid and the claim of entitlement to service connection remained pending. Moreover, in further support of the Veteran's contentions that the claim remained pending, a December 2000 Board decision notes that although the Veteran had filed a timely NOD as to the denial of service connection for PTSD, an SOC had not yet been issued. Thereafter, in a letter sent to the Veteran in January 2001, the RO requested that the Veteran provide any additional medical evidence or information pertinent to his claim of service connection for PTSD. In January and February 2001 responses, the Veteran stated that he was attempting to obtain medical records and that he was receiving treatment for PTSD. Thus, the March 17, 1997, claim remained open and pending up to and including the RO's grant of service connection for PTSD in April 2011. At that time, the medical evidence supporting the claim included August 1997 VA treatment records which note a diagnosis of chronic PTSD, and a May 1998 VA examination report which notes a diagnosis of PTSD secondary to military service in Vietnam. Based on the evidence above, the Board finds that an effective date of March 17, 1997 (the date of claim), but no earlier, is warranted in this case. The Board is bound by statute and VA regulations requiring that the earliest an effective date can be awarded is the date the claim was received by VA. See 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b). ORDER An effective date of March 17, 1997, but no earlier, for the award of service connection for PTSD is granted. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs