Citation Nr: 18142575 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-15 361A DATE: October 17, 2018 ORDER Entitlement to an effective date prior to March 26, 2013 for service connection for posttraumatic stress disorder (PTSD) with major depressive disorder is denied. FINDING OF FACT 1. The Veteran's claims for entitlement to compensation under 38 U.S.C. § 1151 for right leg peripheral arterial disease, status post forefoot amputation and partial scrotectomy, and for an acquired psychiatric disorder as secondary to the section 1151 claim were denied in an October 2007 rating decision. 2. The Veteran filed a notice of disagreement (NOD) specifically referring to the section 1151 claim, but did not appeal the claim for service connection for PTSD. 3. The Veteran filed a claim for service connection for depression in March 2013. 4. Service connection for PTSD with major depressive disorder as due to right leg peripheral arterial disease, status post forefoot amputation and partial scrotectomy, was awarded effective March 26, 2013, the date of the service connection claim. CONCLUSION OF LAW The criteria for an effective date earlier than March 26, 2013 for the award of service connection for PTSD are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to service connection for a PTSD was granted in a March 2015 decision, effective March 26, 2013. The Veteran contends that an earlier effective date is warranted. Specifically, he asserts that the October 2007 rating decision that previously denied the claim did not become final because he submitted a timely and valid NOD to the rating decision and was never provided a statement of the case (SOC). Under the provisions of 38 U.S.C. § 7105 (a), an appeal to the Board must be initiated by an NOD and completed by a Substantive Appeal (VA Form 9 or equivalent) after an SOC is furnished to the claimant. See 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. VA amended its adjudication regulations on March 24, 2015, however, the new regulations are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result will constitute an NOD. While special wording is not required, the NOD must be in terms which can reasonably be construed as disagreement with that determination and a desire for appellate review. If the AOJ gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified, but VA has been liberal in determining what constitutes a NOD. 38 C.F.R. § 20.201 (in effect prior to March 24, 2015); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) (VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement) (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)). A valid NOD must (1) express disagreement with a specific determination of the RO; (2) be filed in writing; (3) be filed with the RO; (4) be filed within one year after the date of mailing of notice of the RO decision; (5) be filed by the claimant or the claimant's authorized representative; and (6) express a desire for Board review. 38 U.S.C. § 7105(b); 38 C.F.R. § 20.201; Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). The RO denied entitlement to service connection for a PTSD by way of the rating decision dated on October 2007. In September 2008, the RO received a signed written statement from the Veteran stated he wished to appeal a prior decision “regarding [his] 1151 claim.” The Veteran submitted an additional signed written statement in October 2008. The Veteran stated he was asking for a DRO appeal regarding his section 1151 claim. A subsequent April 2009 SOC only listed the issue of entitlement to compensation pursuant to section 1151 for right leg peripheral artery disease, status-post forefoot amputation and partial scrotectomy. In a May 2009 substantive appeal, the Veteran appealed the SOC. The Veteran’s representative provided a brief in April 2012, the Veteran testified before a Veteran’s Law Judge in May 2012, and the Board remanded the section 1151 claim in October 2012. The Board finds that the September and October 2008 letters do not satisfy the requirements of an NOD. In both the September 2008 and October 2008 statements, the Veteran specifically stated he was appealing the “1151 claim.” He did not refer to the PTSD claim nor did he express disagreement with more than one claim in the October 2007 decision. Furthermore, at no other point in the appeals period for the 1151 claim (following the filing of the NOD) did the Veteran refer to service connection for an acquired psychiatric disorder prior to the March 2013 claim for depression. The Veteran’s representative has argued that the Veteran’s statements in the October 2007 NOD regarding his life circumstances and thoughts of taking his own life should be considered as a disagreement with the decision to deny the Veteran’s claim for PTSD. However, this statement does not express dissatisfaction or disagreement with the PTSD decision. See 38 C.F.R. § 20.201. The Board is sympathetic to the Veteran’s claim, and as noted, must consider filings liberally. As outlined, above, however, the Board finds that a liberal reading of the October 2007 statement does not provide a basis for finding it an NOD to a claim which was specifically limited to the separate issue for physical disabilities under 38 U.S.C. § 1151. The clear meaning of this document did not extend to a secondary claim for related psychiatric disability. In this regard, at the time of the prior appeal, there was a hearing in May 2012. At the time of that hearing, the VLJ clarified that the in appellate status “is at stated in the April 3, 2009 Statement of the Case which is entitlement to compensation pursuant to 38 U.S.C. § 1151 for right leg peripheral artery disease status post forefoot amputation and partial scrotectomy.” Neither the Veteran nor his then representative indicated that there was an outstanding NOD as to psychiatric disability. Accordingly, the Veteran did not appeal the October 2007 rating decision as to the claim for service connection for PTSD and the decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.   The first document after the October 2007 rating decision which specifically addresses the Veteran’s claim for an acquired psychiatric disorder is a March 2013 claim for service connection for depression. As such, an effective date prior to March 26, 2013, for the award of service connection for PTSD, is not warranted and the claim is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Diane M. Donahue Boushehri, Counsel