Citation Nr: 1805592 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-41 078A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date prior to January 21, 2011 for the award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney-at-law ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to March 1970. Service in the Republic of Vietnam is indicated by the record. The Veteran is a recipient of the Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. 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. A claim of entitlement to service connection for PTSD was last denied in a November 2008 rating decision and an October 2009 statement of the case (SOC); new and material evidence was not received within a year of the issuance of the rating decision and the Veteran did not perfect a timely appeal following issuance of the October 2009 SOC. 2. The Veteran's application to reopen the PTSD claim was received by VA on January 21, 2011. CONCLUSION OF LAW The criteria for assignment of an effective date prior to January 21, 2011 for the award of service connection for PTSD are not met. 38 U.S.C. §§ 5110, 7105(c) (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Neither the Veteran nor his attorney 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. Law and Factual Background Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). The applicable statutory and regulatory provisions require that VA look to all communications from the Veteran which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 511(b)(2) (2012); 38 C.F.R. §§ 3.1(p), 3.155(a) (2017); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). A specific claim in the form prescribed by the Secretary 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). The term "claim" or "application" means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit 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. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155 (2017). With respect to service connection claims that are granted following the submission of new and material evidence, governing regulation provides that the effective date of the award will be the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(1)(ii), (r) (2017). 38 C.F.R. § 3.156(c)(1) provides that "notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section." Pursuant to 38 C.F.R. § 3.156(c)(2), "paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other source." Here, the Veteran contends that he is entitled to an effective date earlier than January 1, 2011, for the grant of service connection for PTSD. In October 2007, he filed a claim of entitlement to service connection for PTSD, which was denied in a November 2008 rating decision, based on insufficient evidence to establish a diagnosis of PTSD pursuant to the DSM-IV. He was notified of that decision in November 2008. He disagreed with the decision in a March 2009 notice of disagreement (NOD) and an SOC was issued in October 2009. The letter that accompanied the October 2009 SOC advised the Veteran that in order to complete his appeal, he needed to return a VA Form 9 within 60 days of the letter or within the remainder, if any, of the one-year period from the date of the letter notifying him of the action that he appealed. In August 2010, the Veteran filed an untimely VA Form 9 as to the October 2009 SOC. The RO notified the Veteran that the VA Form 9 was not timely filed in a January 2011 letter. In January 2011, the Veteran filed a claim to reopen the matter of entitlement to service connection for PTSD. This claim was eventually granted in a May 2013 rating decision, effective January 21, 2011. III. Analysis Based upon a review of the evidence, and for reasons expressed immediately below, the Board finds that the currently assigned effective date of January 21, 2011 is the earliest effective date assignable for the award of service connection for PTSD. As noted above, the assignment of an effective date for service connection is essentially governed by the date of filing with VA of a claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As indicated above, the Veteran was initially denied service connection for PTSD in November 2008. He disagreed with the denial and an SOC was issued in October 2009. He did not, however, subsequently perfect an appeal of that decision within the applicable time period, and new and material evidence was not received within one year of the November 2008 rating decision; thus, the decision became final. See 38 U.S.C. § 7105(d)(3) (2012); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103 (2017). The Veteran and his attorney contend that the effective date for the award of service connection for PTSD should be October 18, 2007, the date of receipt of his original service connection claim. See the Appellant's Brief dated February 2016. Specifically, the Veteran's attorney argues that military records verifying the Veteran's claimed in-service stressors were not associated with the claims file until after the November 2008 rating decision and, thus pursuant to 38 C.F.R. § 3.156(c)(1), the proper effective date is October 18, 2007, the original claim of entitlement to service connection for PTSD. Id. A review of the record demonstrates that, at the time of the final November 2008 rating decision, the Veteran's DD-214 was of record, which indicated that he was the recipient of the CIB and had confirmed service as an infantryman in the Republic of Vietnam. As the November 2008 rating decision recognized that the Veteran had a CIB, corroboration of the stressors was not at issue. Rather, the November 2008 rating decision denied the Veteran's claim of entitlement to service connection for PTSD based upon a June 2008 VA examination report which determined that, despite his stressors, the Veteran did not have PTSD. The June 2008 VA examiner expressly considered the Veteran's claimed stressors, including combat experience and a convoy attack that killed a fellow service member, and determined that these stressors met the first criterion for PTSD. However, the examiner found that the Veteran's symptoms did not meet the other criteria for a DSM-IV diagnosis of PTSD. In January 2011, the Veteran filed a claim to reopen the matter of entitlement to service connection for PTSD. In support of his claim, the Veteran, through his attorney, submitted military records including military operation reports and daily staff journals. These documents corroborated the Veteran's previously accepted report that his unit provided convoy escorts and several fellow service members were killed in the ambush of a convoy. The Veteran's attorney also submitted a June 2011 letter from Dr. N.O. and an August 2012 private psychological report, both of which indicated that the Veteran had a current diagnosis of PTSD as a result of his reported military stressors. Based upon the confirmed diagnosis of PTSD related to the Veteran's in-service stressors, the RO reopened and granted the Veteran's claim of entitlement to service connection in a May 2013 rating decision. The Board has considered the argument of the Veteran's representative concerning the applicability of 38 C.F.R. § 3.156(c)(1) to this matter. However, the reason the claim was reopened and granted was because of the new medical opinion showing a diagnosis of PTSD. The Veteran's stressors have not changed, nor has the fact that VA has always recognized them. In other words, an in-service event has never been at issue; rather, it was the lack of evidence of a current diagnosis. Thus, the award of service connection was not based in whole or in part on the additional service department records and 38 C.F.R. § 3.156(c) does not provide a basis for an earlier effective date in this matter. Critically, the Board has reviewed the record and can identify no communication from the Veteran that would constitute a claim to reopen the matter of entitlement to service connection for PTSD prior to January 21, 2011, and neither the Veteran nor his attorney has identified any such communication. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) (the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). The Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peak, 21 Vet. App. 537, 539-540 (2008) (citing Bingham v. Nicholson, 421 F. 3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d. 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995).) The fact that service connection for PTSD was previously denied does not entitle the Veteran to an earlier effective date with regard to his present claim. The Board has also considered the applicability of equitable tolling to the Veteran's failure to perfect a timely appeal of the October 2009 SOC. To this end, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has found equitable tolling may be proper in a case where, because of mental illness, a veteran filed with the Court an untimely Notice of Appeal (NOA) of a Board decision. Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004). The Federal Circuit found that for equitable tolling to apply, the Veteran must show that the failure to file was the direct result of a mental illness that rendered him incapable of "rational thought or deliberate decision making," or "incapable of handling [his] own affairs or unable to function [in] society." It was noted that a medical diagnosis alone, or vague assertions of mental problems, would not suffice. Id. The Board observes that 38 C.F.R. § 3.353(a) defines a mentally-incompetent person as "one who because of injury or disease lacks the mental capacity to contract or to manage his or her own affairs, including disbursement of funds without limitation." The Board recognizes that the Veteran was determined to be incompetent to handle funds in a May 2014 rating decision. However, the primary evidence that the Veteran was actually incompetent post-dates the prior, final adjudications of his service connection claim. The Veteran's VA claims file does not show that he was incompetent at the time of the October 2009 SOC and was therefore unable to file his substantive appeal in a timely manner. Moreover, the claims file is devoid of any evidence that the Veteran was rendered incompetent due to any disabilities at any time between the issuance of the SOC in October 2009, nor have the Veteran and his attorney raised any such argument. Further, the VA and private treatment records during this time period fail to reflect that the Veteran was so psychologically impaired so as to be incapable of rational thought or deliberate decision making, or incapable of handling his own affairs or unable to function in society. Consequently, it does not appear that the Veteran had disability of a severity sufficient to warrant equitable tolling. Accordingly, the Board finds that equitable tolling is inapplicable in this matter. Here, the evidence clearly shows that the final disallowance, that is, the last disallowance that is determined to be a final decision by virtue of having not been appealed, is the October 2009 SOC. The evidence also demonstrates that the date of receipt of the Veteran's claim to reopen was January 21, 2011, and no sooner. Consequently, the only effective date for award of service connection that may be assigned for the Veteran's PTSD is the presently assigned date of January 21, 2011. Accordingly, an earlier effective date for service connection is not warranted pursuant to 38 C.F.R. § 3.156(c). Finally, to the extent that the Veteran is contending that his psychological symptomatology began during service and continued thereafter and, as such, service connection should be granted from the date of his original claim in 2007. This amounts to an argument couched in equity. The Board, however, is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2012); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). The Board does not dispute that the Veteran experienced PTSD symptomatology prior to the assigned effective date; that he did was evidence that provided a basis for the grant of service connection. However, the Board is obligated to apply the law as Congress has created it. As explained above, the law does not support the assignment of an effective date prior to January 21, 2011. As noted above, the November 2008 rating decision and the October 2009 SOC were final. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The United States Court of Appeals for Veterans Claims (Court) held in Sears v. Principi, 16 Vet. App. 244, 248 (2002), that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service- connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he would have to show CUE in the prior denial of the claim. See Flash, 8 Vet. App. at 340. Here, however, the Veteran has not alleged CUE in the prior RO decisions. In conclusion, for the reasons and bases set forth above, the Board finds that the effective date for the grant of service connection for PTSD is no earlier than the currently assigned date of January 21, 2011. Accordingly, the benefit sought on appeal is denied. ORDER Entitlement to an effective date prior to January 21, 2011 for the award of service connection for PTSD is denied. ____________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs