Citation Nr: 18146706 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 15-07 527 DATE: November 1, 2018 ORDER Entitlement to an effective date prior to April 24, 2013 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT A formal or informal request to reopen the previously denied claim for service connection for PTSD was not received prior to April 24, 2013. CONCLUSION OF LAW The criteria for an effective date earlier than April 24, 2013, for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.516, 3.157, 3.400 (effective prior to March 24, 2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1967 to February 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an earlier effective date for the grant of service connection for PTSD The Veteran seeks an effective date earlier than the currently assigned effective date of April 24, 2013, for the award of service connection for PTSD. The effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable and the regulations in effect prior to March 24, 2015, will be applied. Under the earlier regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. The claim could be filed by a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris. 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 claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The Veteran originally filed a claim for service connection for PTSD in June 2009. In a December 2009 rating decision, the RO denied the Veteran’s claim. He filed a timely notice of disagreement in January 2010 and a statement of the case, also denying the Veteran’s claim for service connection for PTSD, was issued in August 2010. The Veteran did not file a timely VA Form 9, Substantive Appeal; he also did not file new and material evidence during the remaining appeal period. Therefore, the December 2009 rating decision became final. As such, the applicable facts are as follows. In June 2011, the Veteran filed a VA Form 21-526b, Supplemental Claim, for ischemic heart disease and diabetes mellitus type II. During the development of these claims, the RO retrieved VA treatment records, including records from June 2011, which reflected a diagnosis of PTSD. Subsequently, in a November 2011 deferred rating decision and correspondence from the RO, the RO informed the Veteran that it was deferring a claim for anxiety/depression/PTSD as additional information was needed to proceed. In a May 2012 deferred rating decision that appears to be a document kept internal to the VA, the RO noted that PTSD was deferred and noted that since the rater who issued the November 2011 rating decision had brought the claim to issue, the RO needed to “develop for PTSD or clarify if the veteran wants to reopen PTSD claim.” (Emphasis in original.) An April 24, 2013 VA Form 27-0820, Report of General Information, reflects that the RO contacted the Veteran to clarify whether the Veteran wanted to reopen the PTSD claim. During the contact, the Veteran stated that he did wish to reopen. At a May 2013 VA examination, the Veteran was diagnosed with PTSD. A May 2013 rating decision granted service connection for PTSD, rated at 100 percent, effective April 24, 2013, the date of contact by the RO wherein the Veteran indicated that he wanted to reopen the claim for service connection for PTSD. The Board has considered whether any evidence of record prior to April 24, 2013, could serve as an informal petition to reopen the claim of service connection for PTSD in order to entitle the Veteran to an earlier effective date. See 38 C.F.R. § 3.155. Regarding the treatment records reflecting a diagnosis of and treatment for PTSD, under the regulation effective prior to March 24, 2015, evidence of a VA examination or hospitalization or treatment by a private physician could constitute an informal claim for increased benefits or an informal claim to reopen a closed claim. 38 C.F.R. § 3.157(b). However, the Court has held that this regulation only applies to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in § 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that § 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). Specifically, VA medical records are not accepted as informal claims for disabilities where service connection has not been established, since the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999). Thus, the Veteran’s noted diagnoses of PTSD on VA treatment notes in June 2011 do not meet the requirements of an informal request to reopen the claim for service connection for PTSD, and cannot be construed as an informal claim. In the Appellant’s Brief filed in September 2018, the Veteran’s representative argued that June 10, 2011, the date on which the Veteran filed his claim for ischemic heart disease and diabetes mellitus type II, is the proper effective date for service connection. However, the June 10, 2011 claim for ischemic heart disease and diabetes mellitus type II did not meet the requirements of an informal petition to reopen the claim for service connection for PTSD under the regulations in effect at that time. Although this claim was filed by the Veteran, it did not identify the specific benefit sought that is at issue herein, service connection for PTSD or any other acquired psychiatric disorder. Also, it did not describe any symptoms of a psychiatric disorder or otherwise indicate that he was seeking benefits for a psychiatric condition. 38 C.F.R. § 3.155(a). Therefore, it does not qualify as an informal claim. Instead, when the RO contacted the Veteran on April 24, 2013 and asked if he would like to file a request to reopen the claim for service connection for PTSD and he answered in the affirmative, the Veteran effectively filed the informal claim by indicating positively during the phone call that he sought the benefit of service connection for PTSD. Alternatively, the Veteran’s representative pointed to Akers v. Shinseki, 673 F.3d. 1352 (Fed. Cir. 2012), which provides that an informal claim to reopen a previously denied claim can be accepted for purposes of establishing an effective date of benefits before the requisite new and material evidence has actually been submitted; the effective date of the application to reopen is not fixed to the date new and material evidence is received if it ultimately results in a grant of benefits as applying to reopen a claim is different than actually reopening it. The Board does not disagree with the Veteran’s representative’s assertion; however, the matter at issue is the date on which the informal claim was received, not when the new and material evidence leading to the grant of the claim was received, as is insinuated through the citation to this caselaw. As established above, the Veteran’s informal claim was the April 24, 2013 phone call from the RO to the Veteran, asking if he wished to reopen a claim for PTSD, in which he confirmed that he did. Therefore, the date which the Veteran’s representative is arguing for, the date on which the petition to reopen was received, is the April 24, 2013 date which is the current effective date. The Board finds, therefore, that no informal petition to reopen the claim for service connection for PTSD was filed prior to April 24, 2013. In this case, the only cognizable date that could serve as a basis for the award of service connection is the date the Veteran indicated he was seeking the benefit of service connection for PTSD during contact with the RO in April 24, 2013. The Board acknowledges that the November 2011 rating decision deferred adjudication of service connection for a psychiatric disorder. However, the record reflects this was done in error, since the record at that time did not contain any statements that could be construed as seeking to reopen a finally denied claim of service connection for an acquired psychiatric disorder. Unfortunately, without an indication from the Veteran of an intent to apply for such benefits in November 2011, there is no legal entitlement to an earlier effective date based on the statements from the RO in the November 2011 rating decision. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. The Board is without authority to grant an appeal on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Accordingly, the Board finds that the April 24, 2013, effective date for the award of service connection for PTSD was proper as a matter of law. As the law and not the facts are dispositive, the benefit of the doubt rule does not apply, and the claim must be denied. See 38 U.S.C. §§ 501, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD LM Stallings, Associate Counsel