Citation Nr: 1803000 Decision Date: 01/16/18 Archive Date: 01/29/18 DOCKET NO. 11-17 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an effective date earlier than May 18, 2010, for the grant of entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. The Veteran's original claim for entitlement to service connection for an acquired psychiatric disorder was filed in July 2007, more than one year after his separation from service, and entitlement to service connection for PTSD (also claimed as bipolar disorder, paranoid schizophrenia, and manic depressive illness) was denied by the RO in an April 2008 rating decision. 2. The Veteran did not file a timely notice of disagreement (NOD) with the April 2008 rating decision or otherwise express disagreement with the denial of the acquired psychiatric disorder claim. 3. In May 2010, the Veteran submitted a claim for entitlement to service connection for PTSD. 4. Prior to the receipt of the May 2010 claim there were no pending requests for service connection that remained unadjudicated, or a pending notice of disagreement with the April 2008 rating decision. CONCLUSION OF LAW The criteria for an effective date earlier than May 18, 2010, for the award of service connection for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has identified any potential shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Earlier Effective Date In general, where a claim for service connection is filed more than one year after separation from active service, the effective date for the grant of service connection is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b) (2012); 38 C.F.R. § 3.400(b) (2017). In this case, the Veteran separated from active service in September 1971. He did not submit a claim of entitlement to service connection for an acquired psychiatric disorder within one year from his discharge. Therefore, assignment of an effective date back to the day following discharge is not possible. Instead, the appropriate effective date is the date of receipt of claim or the date entitlement arose, whichever is later. The terms "claim" and "application" mean 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) (2017). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2017). In July 2007, the Veteran brought claims for alcoholism, PTSD, paranoid schizophrenia, bipolar disorder, and manic depressive illness. An April 2008 rating decision denied entitlement to service connection for PTSD (also claimed as bipolar disorder, paranoid schizophrenia, manic depressive illness), noting that the Veteran's service treatment records did not include diagnoses or treatment for PTSD, bipolar disorder, manic depressive illness, or paranoid schizophrenia. The RO noted that in September 2004 the Veteran was diagnosed with depression but that there was no evidence that the Veteran was diagnosed with paranoid schizophrenia within one year of separation from service. In September 2007, the RO had requested that the Veteran provide medical evidence confirming a diagnosis of PTSD and specific details of the in-service stressful incidents, but the Veteran had not provided that information. The RO concluded that the claimed acquired psychiatric conditions neither occurred in nor were caused by service. Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a) (2017). The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c) (2012); 38 C.F.R. §§ 3.160(d), 20.201, 20.302(a) (2017). The record does not indicate that the Veteran submitted a timely notice of disagreement or other indication of disagreement with the April 2008 denial of the acquired psychiatric disorder claim. The Veteran does not claim otherwise. Thus, the April 2008 rating decision is final. See 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1103 (2017). The effective date for a grant of service connection for an initial claim or on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2) and (q)(2) (2017). On May 18, 2010, VA received a statement from the Veteran indicating that he was "filing to reopen my claim for service connection disability: 1) PTSD...". After the Veteran submitted his May 2010 statement requesting entitlement to service connection for PTSD, in an October 2010 rating decision the RO granted entitlement to service connection and assigned a 50 percent disability rating, effective May 18, 2010. The Veteran asserts the effective date for the grant of service connection should date back to July 2007, at which time the Veteran filed his initial claim for service connection benefits. The basis for that assertion is that the severity of the Veteran's PTSD disability prevented him from providing the necessary information to grant the claim at that time and/or prevented him from timely appealing the April 2008 rating decision. In addition, he was unaware of the availability of Veterans Service Organizations (VSOs) to assist him in his claim and asserted that had he been advised as to the potential for benefits at the time of separation from service he would have filed a claim at that time (as he contends that he had PTSD at the time of separation from service). The Veteran requested that the original denial based on a final April 2008 decision be waived in light of his problems that prevented him from reading more than the first few lines of the denial. While sympathetic to the Veteran's contentions, the Board is constrained by the law and regulations governing the establishment of effective dates for the award of compensation. Although he claims that he was unaware of the availability of VSOs to assist him with his claim, the April 2008 notification letter accompanying the April 2008 rating decision specifically notified the Veteran, "We have no record of you appointing a service organization or representative to assist you with your claim. You can contact us for a listing of the recognized veterans' service organizations and/or representatives. Veterans' service organizations, which are recognized or approved to provide services to the veteran community, can also help you with any questions." As to the severity of the Veteran's mental health problems preventing him from appealing the April 2008 rating decision or providing sufficient information to grant the claim at that time, the Veteran's condition did not preclude him from filing the initial claim in July 2007 and there is no indication of a worsening of the mental health symptoms thereafter that would have prevented him from filing a notice of disagreement with the April 2008 rating decision. Moreover, the Veteran was able to submit multiple authorizations to obtain treatment records documenting his ongoing mental health treatment (none of which documented a diagnosis of PTSD), which weighs against his contention that his mental health problems prevented the Veteran from providing VA with the necessary information to grant his claim. There are only two exceptions to the rule of finality of VA decisions, that is, challenges based on clear and unmistakable error (CUE) in a prior, final decision (38 U.S.C. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C. § 5108). Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). The Board has considered the Veteran's general contentions that there was sufficient evidence of record to grant his claim at the time of the April 2008 rating decision. It is noteworthy, that the Veteran's arguments do not amount to an allegation of CUE. In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court stated that CUE is a very specific and rare kind of error and if the Veteran wishes to reasonably raise CUE there must be "some degree of specificity as to what the alleged error is and, unless it is the kind of error...that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error." Thus, as a threshold matter, the Veteran must plead CUE with sufficient particularity. Id. The Court in Fugo also held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Id. Here, it is clear the Veteran never with any specificity alleged CUE with the past rating decision, but has merely argued that the RO improperly weighed the evidence. Specifically, the Veteran argues that he had PTSD at the time of the April 2008 rating decision and there was sufficient evidence to grant the claim at that time. As noted above, the effective date for a grant of service connection for an initial claim or on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. Thus, May 18, 2010, is the earliest effective date possible under the relevant laws and regulations for the Veteran's PTSD claim and the claim must be denied. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. ORDER Entitlement to an effective date earlier than May 18, 2010, for the grant of entitlement to service connection for PTSD is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs