Citation Nr: 1801533 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 12-16 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date prior to February 4, 2009 for service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date prior to November 19, 2010 for service connection for sinusitis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran had active service from July 1987 to February 1988, from February 1989 to July 1989, from July 1989 to December 1989, from December 1989 to January 1990, from March 1990 to May 1990, and from July 1990 to May 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT 1. In March 2007, the RO declined to reopen the Veteran's claim for service connection for PTSD; the Veteran did not appeal. 2. On February 4, 2009, the Veteran submitted a request to reopen his prior claims; he clarified his intent to reopen the claim for service connection for PTSD in correspondence received on February 27, 2009. 3. In March 1998, the RO denied service connection for sinusitis; the Veteran did not appeal. 4. On March 24, 2009, the Veteran submitted a request to reopen his claim for service connection for breathing problems, which reasonably includes a request to reopen the claim for service connection for sinusitis. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 4, 2009 for service connection for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017). 2. The criteria for an effective date of March 24, 2009 for service connection for sinusitis have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. 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). II. Effective Dates The Veteran seeks earlier effective dates for the grant of service connection for PTSD and sinusitis. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection or a claim reopened after final adjudication "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). The implementing regulation clarifies this to mean that the effective date of an evaluation and an 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." 38 C.F.R. § 3.400. A. PTSD Regarding PTSD, the Veteran filed his initial claim for service connection for PTSD in January 1997. The RO denied his claim in a March 1998 rating decision. The Veteran did not submit a notice of disagreement (NOD) or new and material evidence within one year of the issuance of this decision; therefore, the decision became final. The Veteran asked the RO to reopen his claim for PTSD in April 2002. The RO declined to reopen the claim in a November 2002 rating decision. The Veteran did not submit a NOD or new and material evidence within one year of the issuance of this decision; therefore, the decision became final. The next request to reopen his claim for service connection for PTSD was received in January 2006. The RO denied the claim in March 2007. Again, the Veteran did not submit a NOD or new and material evidence within one year of the issuance of this decision; therefore, the decision became final. The next correspondence received indicating intent to reopen prior claims was received on February 4, 2009. On February 27, 2009, the Veteran clarified his request to include reopening his claim for PTSD. In February 2011, the RO granted service connection for PTSD and assigned an effective date of February 4, 2009, the date of his claim. As noted above, effective dates for service connection are either the date the claim was received or the date entitlement arose, whichever is later. In this case, the Veteran's current claim was received on February 4, 2009. Accordingly, the Board finds no basis for the award of an earlier effective date. The appeal is denied. B. Sinusitis Regarding sinusitis, the Veteran filed his initial claim for service connection for sinusitis in August 1992. The RO denied his claim in January 1993. The Veteran did not submit a NOD or new and material evidence within one year of the issuance of this decision; therefore, the decision became final. In January 1997, the Veteran requested that the RO reopen and reconsider his claim for service connection for respiratory and sinus problems. The RO denied his claim in a March 1998 rating decision. The Veteran did not submit a NOD or new and material evidence within one year of the issuance of this decision; therefore, the decision became final. The next request to reopen his claim for service connection for breathing problems was received in January 2006. The RO denied the claim in March 2007. The Veteran did not submit a NOD or new and material evidence within one year of the issuance of this decision; therefore, the decision became final. The next correspondence received indicating intent to reopen his claim for breathing problems was received on March 24, 2009. While the claim indicates the Veteran's request to reopen a claim for bronchitis with pneumonia, he indicated he had breathing problems. The Board finds that his claim reasonably included a request to reopen the claim of service connection for sinusitis. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board finds that the date of claim and proper effective date for service connection for sinusitis is March 24, 2009 and to this extent, the appeal is granted. ORDER Entitlement to an effective date prior to February 4, 2009 for service connection for PTSD is denied. Entitlement to an effective date of March 24, 2009 for service connection for sinusitis is granted, subject to the regulations governing the award of monetary benefits. ______________________________________________ LANA K. JENG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs