Citation Nr: 1800103 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-09 957 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date prior to October 10, 2012, for the award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 2002 to November 2004. She had a prior period of Active Duty for Training from May 2001 until October 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Milwaukee, Wisconsin. The Veteran was scheduled for a January 2017 video hearing before a Veterans Law Judge; however, she failed to report at that time and to date has offered no explanation for her absence. Thus, her hearing request will be considered withdrawn. 38 C.F.R. §§ 20.702, 20.704. FINDINGS OF FACT 1. A December 12, 2007 rating decision denied service connection for a mental condition, to include PTSD; as the Veteran did not file a timely notice of disagreement regarding this determination, it is final. 2. A claim for service connection for a psychiatric disability was received by VA on October 10, 2012; no prior unadjudicated claim is of record. CONCLUSION OF LAW The criteria for an effective date earlier than October 10, 2012 for the award of service connection for PTSD have not been met. 38 U.S.C. § 5110(b)(2) (2014); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The claim for an earlier effective date for service connection arises from the Veteran's disagreement with the effective date assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where 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 address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). Furthermore, in the present case, there is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). The Board notes that the issue here is of entitlement to an earlier effective date for service connection and does not involve any medical questions. The Court has held that when the interpretation of a statute or regulation is dispositive of the issue on appeal, neither the duty-to-assist nor the duty-to-notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004 (June 23, 2004). Hence, adjudication of this appeal at this time is proper. The Veteran contests the effective date of October 10, 2017, for the award of service connection for PTSD. Under the applicable criteria, the effective date of an award of disability compensation based on an initial claim 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) (2014). The implementing regulation provides that the effective date of an award of disability compensation is the day following separation from active service, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of claim or the date that entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2) (2016). A "claim" is defined in the VA regulations as "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). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). The date of receipt of the claim, or "date of the claim," means the date of the application based upon which benefits are awarded, not the original claim for service connection. See Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). If VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date. Id. at 200. In the present case, the RO based the October 10, 2012 effective date for the award of service connection for PTSD on the receipt on that date of a formal claim for the same. Upon review of the totality of the record, the Board finds no communication from the Veteran, her representative, or a third party received prior to October 10, 2012, which could reasonably be construed as a formal or informal unadjudicated claim for service connection for a psychiatric disability. See Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007) ("a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability"). The Veteran asserts that she previously filed a service connection claim for a psychiatric disability in June 2007, and an effective date back to that date is warranted. Review of the record confirms that on June 16, 2007, VA received a VA Form 21-4142, Application for Compensation or Pension, for service connection for multiple disabilities, to include a psychiatric disability claimed as PTSD and/or depression. Subsequently, in a December 2007 rating decision, the Veteran was denied service connection for a mental condition, to include PTSD and depression. She was notified via letter mailed that same month. She did not file a timely notice of disagreement regarding this determination. Thus, in the absence of a timely appeal of this denial, the December 2007 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The Veteran has not alleged, and the record does not reflect, any communication from the Veteran or her representative which could be construed as a timely notice of disagreement or attempt to initiate appellate review of the December 2007 rating decision. Thus, to the extent to which the Veteran did file prior 2007 service connection claims for PTSD, this was properly adjudicated by the RO, and that decision subsequently became final. 38 C.F.R. § 20.1103 . Accordingly, only a claim for CUE can result in an earlier effective date given these facts. Rudd, 20 Vet. App. at 300. The Veteran next submitted a service connection claim in March 2010. A VA Form 21-4142, Application for Compensation or Pension, was received on March 22, 2010; however, this claim was for a disability of the breasts, and did not mention PTSD, depression, or any other psychiatric disability. The next service connection claim received by VA, as previously mentioned, was the VA Form 21-4142 received on October 10, 2012, which was subsequently granted by the RO. As there remain no formal or informal unadjudicated claims provided or received prior to October 10, 2012, it is considered the date of the claim of entitlement to service connection for PTSD. The Board notes that additional service personnel records were associated with the claims file in 2009 and accordingly carefully considered the provisions of 38 C.F.R. § 3.156(c). In this case, however, the December 2007 rating decision clearly indicated the reason for the denial was no current diagnosis and even noted that service treatment records reflected a self-report of depression but explained no formal diagnosis was ever rendered. The March 2013 rating decision considered the results of a February 2013 which provided a clear diagnosis of PTSD and linked the diagnosis to her service. In other words, the additional service personnel records were not the basis of the grant and accordingly the provisions of 38 C.F.R. § 3.156(c) do not apply. As the preponderance of the evidence is against an effective date prior to October 10, 2012, for the award of this benefit, the benefit-of-the-doubt does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date prior to October 10, 2012, for the award of service connection for PTSD is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs