Citation Nr: 1803252 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-32 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date earlier than October 29, 2010, for the award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty including from August 1986 to February 1989 and from November 2005 to May 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2014, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. FINDINGS OF FACT 1. The Veteran's initial claim for entitlement to service connection for PTSD was denied in August 2007; she was notified of the decision and her appellate rights by correspondence sent to her address then of record in August 2007 and did not appeal. 2. The Veteran's request to reopen a previously denied service connection claim for PTSD was received by VA on October 29, 2010, and service connection was established effective from that date. CONCLUSION OF LAW The criteria for an effective date earlier than October 29, 2010, for the award of service connection for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Neither the Veteran nor her representative has raised any issue 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). Earlier Effective Date Claim VA law provides that the effective date for an award of disability compensation for an original claim shall be the date of receipt of the claim, or the date entitlement arose, whichever is later, unless the claim is received within one year of separation from service. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). For reopened claims the effective date is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits. 38 C.F.R. § 3.103(b) (2017). If no notice of disagreement is filed within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title. 38 U.S.C. § 7105(c) (2012). Notification for VA purposes is a written notice sent to the claimant's last address of record. 38 C.F.R. § 3.1(q) (2017). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). A VA failure of a duty to assist a veteran or even the existence of "grave procedural error" do not render a VA decision non-final. See Cook v. Principi, 318 F.3d 1334, 1348 (Fed. Cir. 2002). The Veteran's initial claim for entitlement to service connection for PTSD was received by VA in July 2006 and denied in an August 2007 rating decision based upon the absence of evidence of a diagnosis of PTSD. She was notified of the decision and her appellate rights by correspondence sent to her address then of record in August 2007. Her request to reopen the previously denied service connection claim for PTSD was received by VA on October 29, 2010. In that correspondence she requested that the claim be "re-opened on grounds of new and material evidence that was not available prior" to the August 2007 rating decision. There is no evidence of any earlier claim as to the matter. The Veteran contends, in essence, that she was not adequately notified of the August 2007 rating decision and that she had no permanent mailing address during the period from 2006 to 2010. She states that she had been living with her mother in 2006 and that her mother moved in 2007, which resulted in her not receiving notice of the decision. She indicated that she did not know who moved into the house after she and her mother vacated the premises, and that she did not receive any forwarded mail. She added that she moved around between several states and even Germany in the years between 2007 and 2010. However, as noted, the Veteran's October 2010 claim/request specifically referred to the August 2007 rating decision. That statement in and of itself strongly suggests that she possessed knowledge of the earlier adverse action. She also provided a mailing address in 2010 that was the same address used in the August 2007 notice letter. This suggests to the Board that the address used in 2006 has remained a valid address whereby the Veteran could be reached even if she did not physically reside at that address. The Veteran is found to have been adequately notified of the August 2007 and to have had actual knowledge of the decision at the time of her October 2010 correspondence. There is no basis under applicable VA law for the earlier benefits sought. Therefore, the Board finds the claim for entitlement to an earlier effective date must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the Veteran's claim. ORDER Entitlement to an effective date earlier than October 29, 2010, for the award of service connection for PTSD is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs