Citation Nr: 18147694 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-35 011 DATE: November 5, 2018 ORDER Entitlement to an effective date prior to February 10, 2015, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT On February 10, 2015, the Veteran filed a claim for service connection for PTSD; there is no prior, unadjudicated claim seeking service connection for this disability. CONCLUSION OF LAW The criteria for an effective date prior to February 10, 2015, for the award of service connection for PTSD, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1985 to October 2005. Effective Date Claim The Veteran seeks an effective date earlier than February 10, 2015, for the award of service connection for his PTSD. The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. With specific regard to direct service connection claims, the effective date is the day following separation from active service or the date entitlement arose if the claim was received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(ii)(2)(i). Regulations that were in effect prior to March 24, 2015, required that an informal claim “must identify the benefit sought.” See 38 C.F.R. §§ 3.155, 3.160 (2014). The regulations also provided that a claim may be either a formal or informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p) (2014). The regulations in effect since March 24, 2015, do not allow for informal claims that are not submitted on an application form prescribed by the Secretary. See 38 C.F.R. §§ 3.155, 3.160 (2017). The Board will apply the regulations in effect prior to March 24, 2015, as they allowed for informal claims and are therefore more favorable to the Veteran. “[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition.” DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011); Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead of assigning an effective date mechanically on the date of a Veteran was diagnosed, “all of the facts should be examined to determine the date that [the Veteran’s disease] first manifested.” See id. at 58. The Board must determine when a service-connected disability manifested itself under the all of the “facts found,” including the medical opinions in question, and assign an effective date based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000). “[I]t is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528). The effective date of a service connection claim is not necessarily the date the diagnosis is made or submitted to the VA. Rather, a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms. Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). 1. Entitlement to an effective date prior to February 10, 2015, for the award of service connection for PTSD The Board finds that the preponderance of evidence is against the claim for an earlier effective date for the Veteran’s PTSD; the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C. § 5107. In this case, the Veteran’s claim for PTSD was submitted via a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, and received by the Regional Office (RO) on February 10, 2015. Based on the evidence before it, the RO granted service connection for PTSD, and assigned a 70 percent rating for PTSD, effective February 10, 2015, the day the claim was received. The Veteran asserts, as set forth in his March 2016 Notice of Disagreement, that an earlier effective date is warranted because he was diagnosed with PTSD on February 28, 2008. In other words, he contends that an earlier effective date is warranted for the award of service connection for PTSD because he was diagnosed with this disability prior to the assigned effective date. However, the law is clear that the effective date is based on the date of receipt of the claim or the date entitlement arose, whichever is later. In this case, the Veteran may have been diagnosed with PTSD in February 2008, but he did not file his claim for PTSD until February 10, 2015, the later of the two dates. The Board considered whether any evidence of record dated prior to February 10, 2015, may be construed as a claim, formal or inform, for service connection for PTSD. However, in this case, there is no document of record earlier than the established date of claim that may reasonably be construed as a formal or informal claim, nor did he submit his claim within one year from separation from service. See 38 C.F.R. §§ 3.151(a), 3.155(a). In fact, the Veteran acknowledged that he didn’t file a claim for PTSD prior to February 10, 2015. Specifically, in March 2016, the Veteran stated that he “should have filed a claim for PTSD” when he was first diagnosed with PTSD in 2008, but he did not because he “assumed it was an automatic award.” There is no claim prior to the currently assigned effective date. (Continued on the next page)   Although it is unfortunate that the Veteran did not submit a claim in February 2008 at the time of the PTSD diagnosis, as stated above, the law is clear that the effective date is the latter of the date of receipt of the claim or the date entitlement arose. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jane R. Lee