Citation Nr: 18142331 Decision Date: 10/16/18 Archive Date: 10/15/18 DOCKET NO. 15-36 035 DATE: October 16, 2018 ORDER An effective date of July 31, 1993, for the award of service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran last served on active duty from February 1993 to July 30, 1993. 2. No claim, formal or informal, was filed by the Veteran prior to August 9, 1993 seeking service connection for psychiatric disability. CONCLUSION OF LAW The criteria for an effective date of July 31, 1993, for the grant of service connection for PTSD have been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1977 to July 1980, from November 1990 to April 1991, and from February 1993 to July 30, 1993. The Board initially notes that while the RO, in the April 2015 rating action on appeal, granted an earlier effective date for the award of service connection for PTSD, it did so in contravention of existing caselaw. Following the June 1997 rating action granting service connection for PTSD, and assigning an effective date of October 6, 1995, the Veteran disagreed with the assigned effective date in light of a December 1993 claim for the disorder. In July 1998, VA granted an effective date of December 7, 1993 for the award of service connection, and notified the Veteran that this constituted a full grant of his appeal on the matter. Neither the Veteran nor any representative has ever disputed VA’s characterization of the status of that claim. In an April 2011 decision, the Board noted that the earlier effective date matter was final in light of that rating action, and neither the Veteran nor any representative disputed this, even to this day. Nevertheless, when the Veteran requested an earlier effective date for the award of service connection in February 2015, the RO treated the claim as an original one, despite caselaw including Rudd v. Nicholson, 20 Vet. App. 296 (2006) clarifying that there is no such legal creature as a freestanding earlier effective date claim, and noting that the proper route is to address the matter through the mechanism of clear and unmistakable error. Other cases came to about the same result when looking at such matters through the lens of new and material evidence. Despite the RO’s error, and in fairness to the Veteran, the Board will address the issue at hand as an original claim. The Board lastly notes that in August 2017, the Veteran withdrew all requests for a hearing, both before the Board and before the RO. Earlier effective date prior to August 9, 1993 for a grant of service connection for PTSD Earlier Effective Date Under governing law, the effective date for a grant of compensation will be the day following separation from active service, or the date entitlement arose if a claim is received within one year after separation from service. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(b)(2)(i) (2018). Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. Id. As relevant herein, a claim or application is 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) (2018). Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400(a) (2018). The Veteran does not dispute that he did not file a claim within a year following discharge from his first period of service in July 1980. He also does not contend that he filed a claim seeking service connection for psychiatric disability at any point prior to 1991. Following his discharge from his second period of service in April 1991, he received psychiatric treatment, but did not file a claim seeking service connection for psychiatric disability within a year of his discharge. Treatment records reflect that in May 1991 and November 1991, the Veteran was admitted to a VA hospital for treatment for substance use. The May 1991 VA treatment note lists a diagnosis of substance use disorder (SUD). A November 1991 nursing note shows the Veteran had a lack of satisfaction and effectiveness in interpersonal relationships related to the use of drugs. A December 3, 1991 inpatient treatment note shows a history of SUD (hard drugs and alcohol) and war experience (Persian Gulf) with complaints of depression and anxiety. A provisional diagnosis of SUD/atypical depression. The note also shows (PTSD depression). The Veteran did not, in those records, evidence any intention of filing a claim for service connection. Nor does 38 C.F.R. § 3.157 apply, as service connection for psychiatric disability was not granted until 1997. The mere fact of medical treatment does not constitute a claim. The first actual claim for service connection for psychiatric disability was submitted in August 1993. On the VA Form 21-4138 filed at that time, the Veteran stated that he filed a claim for service connection for a nervous disorder about a year prior and had not received a response or been scheduled for a VA examination. The Board has carefully reviewed the evidence on file, but finds no evidence to support the Veteran’s assertion. The Board liberally construes the August 1993 correspondence itself to be the first claim for service connection for psychiatric disability, and finds that no other claim seeking such disability was filed prior to that date. As the August 1993 claim (and indeed, even the December 1993 claim which indisputably sought service connection for psychiatric disability) was received within a year of the Veteran’s period of service ending July 30, 1993, the effective date is properly the day after the last day of that period of service, or July 31, 1993. (Continued on the next page)   Accordingly, the Board finds that the proper effective date for the grant of service connection in this case is July 31, 1993. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Mitchell, Associate Counsel