Citation Nr: 1803346 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-38 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date earlier than May 13, 2009, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Labi, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1965 to August 1968. This matter comes to the Board of Veterans Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In October 2017, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The RO continued the denial of service connection for PTSD in an unappealed February 2006 rating decision. 2. A November 2009 rating decision granted service connection for PTSD with an effective date of May 13, 2009. 3. Prior to May 13, 2009, there is no open claim for service connection for PTSD. CONCLUSIONS OF LAW 1. The February 2006 rating decision that denied entitlement to service connection for PTSD is final. 38 U.S.C. § 7105 (2012); 38 U.S.C. §§ 20.302, 20.1103 (2017). 2. The criteria for an effective date earlier than May 13, 2009 for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.158, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1) (2012); 38 C.F.R. § 3.400(b)(2)(i) (2017). The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(q)(ii), (r) (2017). Effective March 24, 2015, VA amended its regulations regarding claims and appeals. The amendment requires claims to be filed on standard forms, eliminates constructive receipt of claims, and requires NODs on a standardized form. The Federal Register notice is found at 79 Fed. Reg. 57660 (Sept. 25, 2014). The law applicable in this case is that in place prior to this revision. "Claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. 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. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that May 13, 2009 is the correct date for the grant of service connection for PTSD. Although the Veteran has contended that he is entitled to an earlier effective date for his award of service connection for PTSD, there is no basis under the governing legal criteria to establish that he is legally entitled to an earlier effective date. Review of the record shows that the Veteran first filed a claim of entitlement to service connection for paranoid schizophrenia in August 1973. The RO denied service connection for a nervous condition in a March 1979 rating decision. The RO informed the Veteran of that denial in an April 1979 letter, notifying the Veteran of his procedural and appellate rights. VA received no information or evidence relevant to that issue within a year of notification. Thus, the March 1979 rating decision is final. See 38 U.S.C. § 7105; see also 38 C.F.R. § 3.156(b). In June 1980, VA received a claim to reopen the previously denied claim. A September 1980 deferred rating decision indicates that the Veteran failed to report for examination and that the evidence was not adequate for rating purposes. The Veteran was sent a letter on September 24, 1980 advising the Veteran to explain why he missed his examination and to give his earliest future reporting date. This letter was returned in the mail; however, a letter was sent on October 10, 1980 to the correct address. A response to the letter was not received. In a May 1990 statement, received June 4, 1990, the Veteran again requested to reopen his claim for PTSD. A letter sent to the Veteran in June 1990 requested that the Veteran submit medical evidence showing a diagnosis of PTSD. The letter advised that the evidence must be received by VA within one year from the date of the letter and that, if entitlement is established, benefits may not be paid prior to the date of its receipt. A follow-up letter was sent to the Veteran on August 28, 1990. A review of the record indicates that a response to this request was not received. In a January 1993 statement, stamped received in January 1994, the Veteran claimed service connection for PTSD. In May 1994, the RO notified the Veteran that he failed to furnish evidence of a diagnosis. On May 13, 1994, the Veteran was sent a letter requesting that he furnish medical evidence showing a diagnosis of PTSD and advising him that the evidence must be received within one year. In May 1994, the Veteran submitted a statement indicating that he was diagnosed with a neuropsychiatric condition treated at a VAMC and that he felt it was PTSD. A follow-up letter was sent to the Veteran in September 1994, advising that medical evidence of a diagnosis of PTSD had not been received. A review of the record indicates that a response to these letters was never received. When evidence requested in connection with an original claim is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, compensation based on that evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158(a). When a claim is deemed abandoned pursuant to § 3.158, further action on the part of VA is not required until a new claim is received, including advising the claimant of appellate rights. Hurd v. West, 13 Vet. App. 449 (2000); Morris v. Derwinski, 1 Vet. App. 260 (1991) (concluding that even though an appellant may have been ignorant of the abandonment provisions of § 3.158(a), the appellant is charged with knowledge of the regulation). Therefore, the Board finds that, as a matter of law, the Veteran abandoned the June 1980, May 1990, and January 1993 claims to reopen, and accordingly, the effective date for service-connected PTSD can be no earlier than the date of the new claim following the final denial and subsequent abandoned claim. Sabonis v. West, 6 Vet. App. 426 (1994); 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 3.158(a). In April 2001, the Veteran, through his representative, applied to reopen his claim for PTSD. In June 2001, the Veteran received notice that his claim for service connection for PTSD was received. In a November 2001 rating decision, service connection for PTSD was denied. In a November 29, 2001 statement, the Veteran, through his representative, indicated disagreement with the denial of his claim. In a statement received in January 2002, the Veteran applied for service connection for schizophrenia and PTSD. In a March 2002 statement of the case (SOC), service connection for PTSD was denied, and the Veteran submitted a VA Form 9 requesting a hearing with a local Decision Review Officer (DRO). A June 2002 rating decision indicates that the Veteran's request to reopen his claim for service connection for a nervous condition was received on January 8, 2002 but that new and material evidence to reopen his claim for service connection for a nervous condition had not been received. In November 2002, the Veteran submitted a notice of disagreement with the June 2002 rating decision. In a May 2004 supplemental statement of the case (SSOC), service connection for PTSD was denied. A May 2004 SOC indicated that new and material evidence to reopen the claim for service connection for schizophrenia had not been submitted. In a March 2005 decision, the Board denied service connection for PTSD. That decision was final on the date it was mailed. The Veteran submitted statements regarding PTSD in October 2005 and January 2006. In a February 2006 rating decision, the RO continued denial of service connection for PTSD because no new and material evidence had been received. The RO informed the Veteran and his representative of that of that decision and of his procedural and appellate rights in a letter sent that same month. The Veteran did not appeal the February 2006 rating decision. Thus, the February 2006 rating decision is final. On May 13, 2009, a statement regarding the Veteran's claim for benefits for service connection for PTSD was received. In a November 2009 rating decision, the RO granted service connection for PTSD effective May 13, 2009. Prior to the May 2009 claim, there were no open claims pending. In multiple statements, the Veteran has indicated that he felt that his case was not taken back to review his PTSD from 1973 and that at the time of filing his claim he did not understand what was happening to him. He stated that he has been treated at the VA with the same medication since 1973. In the November 2002 hearing before a DRO, the Veteran testified that he was diagnosed with a nervous or psychiatric condition at a VA facility in 1973 and began taking medication at that time. In the October 2017 hearing, the Veteran testified that he first applied for PTSD in 1973 and that he had been taking the same medication for treatment since 1973 until they changed it in 2016. The Board acknowledges the Veteran's contention that he has been treated by the VA with the same medication for a psychiatric condition since 1973. However, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. As discussed above, there is no claim for service connection for PTSD outstanding before May 13, 2009, when the Veteran filed a specific claim to reopen. No pertinent evidence was received within one year of the February 2006 rating decision, and the Board can find no evidence of record from the Veteran or representative at the time, that can be inferred as a substantive appeal. Thus, the Board finds that May 13, 2009, the date of receipt of the claim to reopen, is the appropriate effective date for the service-connected PTSD, as that is the date of the application to reopen following a final disallowance of the prior claim for service connection. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an effective date prior to May 13, 2009 for the grant of service connection for PTSD. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an earlier effective date than May 13, 2009, for service-connected PTSD, is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs