Citation Nr: 1754493 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-33 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an effective date prior to May 17, 2011 for the grant of service connection for an posttraumatic stress disorder (PTSD). 2. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance (excluding the period from May 17, 2011 to September 1, 2011). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran, Veteran's wife ATTORNEY FOR THE BOARD A. VanValkenburg, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1974 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). During the course of the appeal, from May 17, 2011 to September 1, 2011, the Veteran was granted SMC based on housebound criteria under 38 U.S.C.A. § 1114 (s). As a full grant of the benefit requested has been awarded for this period, it is not for appellate consideration. The Veteran testified before the Board at a March 2017 video hearing. A transcript of the hearing is of record. The issue of entitlement to SMC is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's initial claim for entitlement to service connection for PTSD was denied by the RO in August 2006; the Veteran did not perfect his appeal and the decision became final. 2. On May 17, 2011, VA received a request from the Veteran to reopen a claim of entitlement to service connection for PTSD. 3. At the time of receipt of the May 17, 2011, claim to reopen, there were no pending or otherwise unadjudicated claims for entitlement to service connection for PTSD. CONCLUSION OF LAW The criteria for an effective date prior to May 17, 2011 for the grant of service connection for PTSD have not been met. 38 U.S.C.A. § 5110(a) (West 2014), 38 C.F.R. §§ 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency, and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400, 3.400(b)(2). If a claim is reviewed at the request of the claimant more than one year after the effective date of a liberalizing law, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(2). When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopened) claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period. 38 C.F.R. § 3.400(q). If new and material evidence other than service department records is received within the appeal period or prior to appellate decision, the effective date will be as thought the former decision had not been rendered. Rating decisions from which an appeal is not timely perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. The Court has held that once a rating decision which establishes an effective date becomes final, such a decision can only be revised if it contains clear and unmistakable error. See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). The Court has stressed that any other result would vitiate the rule of finality, thereby recognizing that freestanding claims for earlier effective dates are impermissible. Id. The Veteran's claim was filed in May 2011 and the following regulations in effect prior to March 25, 2015 are applicable. Here, a claim could be either a formal or informal written communication indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (2015); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155 (a). 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. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. Also, under former 38 C.F.R. § 3.157(a), a report of examination or hospitalization will sometimes be accepted as an informal claim to reopen, but only when a formal claim for compensation has been previously disallowed for the reason that the disability is not compensable in degree. The mere presence of medical evidence also does not establish intent on the part of a Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Merely seeking treatment does not establish a claim, including an informal claim, for service connection. Facts and analysis The Veteran asserts an effective date prior to May 17, 2011 for the grant of PTSD is warranted. The Veteran originally filed a claim for entitlement to service connection for PTSD in January 2006. The claim was denied in a August 2006 RO rating decision due to lack of a diagnosis of PTSD related to service. The Veteran expressed disagreement with the decision and a statement of the case was issued in September 2007; however, the appeal was not perfected. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. In May 2011, the Veteran filed a claim of entitlement to service connection for PTSD on a VA Form 21-526. The claim was granted in the December 2011 RO rating decision, effective May 17, 2011, the date of his claim to reopen. The Veteran believes that the grant of service connection should date to service in 1974, 2004 or January 2006. In this regard, he contends that the condition existed since 1974. Futher, he reports that he originally filed a PTSD claim in 2004 but it was lost or thrown out by VA. Alternatively, he argues that he timely perfected his appeal of the denial of his January 2006 PTSD claim but the VA Form 9 was lost or thrown out. Here, there is no claim or contention that there was an unadjudicated implied claim that could form the basis of an earlier effective date. Despite the Veteran's report of symptoms since service and evidence of psychiatric treatment prior to the last final denial in August 2006, the appeal of the RO rating decision was not perfected and, therefore, is final. Where there has been a prior final denial, the award of VA benefits may not be effective earlier than the date VA received the particular application for which the benefits were granted. Washington v. Gober, 10 Vet. App. 391 (1997). The Veteran's assertions of entitlement to an earlier effective dated based on lost or missing paperwork does not serve as a valid basis to grant the claim. There is no objective documentation of record to cooberate the Veteran's allegation that he filed a 2004 claim for benefits or that he perfected his appeal of the August 2006 RO rating decision. Had such claim or VA Form 9 been received by VA, there is a "presumption of regularity" that it would have been marked as received, and then entered into the record. See Mindenhall v. Brown, 7 Vet. App. 271 (1994); Ashley v. Derwinksi, 2 Vet. App. 62, 64 (1992). The Veteran has offered speculation, but no probative evidence to the contrary to rebut the presumption of regularity. If the grant of service connection is based on a claim which has been finally denied and subsequently reopened by the submission of new and material evidence, as is the case here, the effective date is the date of receipt of the new claim, or the day entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q), (r). The Veteran's new claim for his PTSD was received May 17, 2011, which is the current effective date for his service-connected PTSD. Entitlement to an earlier effective date for the grant of service connection for an acquired psychiatric condition must be denied as a matter of law. See Sabonis v. West, 6 Vet. App. 426, 430 (1994). ORDER An effective date prior to May 17, 2011 for the grant of service connection for PTSD is denied. REMAND The Veteran asserts entitlement to SMC based on the need for aid and attendance due to service-connected disabilities. The Veteran is service connected for PTSD (70 percent), bilateral knee conditions (20 percent and 10 percent, each), low back (40 percent), bilateral foot (20 percent, each), bilateral lower extremity radiculopathy of the femoral and sciatic nerves (10 percent each, for both nerves) and a scar of the right foot (10 percent). The Veteran's combined disability rating has been 100 percent throughout the appeal period. The Veteran and his wife testified at his March 2017 Board hearing regarding the Veteran's need of near-constant care from his wife. Essentially, they report that the Veteran is unable to independently dress, bathe, cook or drive (any prolonged distance) due to his service connected disabilities, including the use of pain medications used to treat such conditions. In light of the recent testimony regarding such limitations, the Board finds a VA aid and attendance examination is required. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA Aid and Attendance examination examination to determine the current nature and severity of his service connected disabilities. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail, including the functional impairment of such. Based on the lay and medical evidence of records, the examiner is asked to comment on the effects of the Veteran's service connected disabilities (alone), including the impact of medications used to treat such on his ability to perform functions of self-care to include his ability to dress or undress, keep ordinarily clean and presentable (adjusting any special prosthetic or orthopedic applications that normal people would be able to adjust without aid), feed, attend to the wants of nature and/or protect himself from the hazards or dangers incident to his daily environment. See 38 U.S.C.A. § 1114 (l). The examiner(s) should, to the extent possible, distinguish symptoms attributable to service-connected disabilities from those attributable to any other disability that is not service-connected. If it is not medically possible to do so, the examiner(s) should clearly so state, and indicate that the findings pertain to overall disability. 2. Then, after taking any additional development deemed necessary, readjudicate the issue on appeal. If any of the benefit sought remains denied, issue a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs