Citation Nr: 18147820 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-38 193 DATE: November 6, 2018 ORDER Entitlement to an effective date earlier than February 5, 2015, for service connection of posttraumatic stress disorder (PTSD) and tinnitus is denied. FINDING OF FACT VA did not receive a claim for service connection of PTSD and tinnitus prior to February 5, 2015. CONCLUSION OF LAW The criteria for an effective date prior to February 5, 2015 for service connection of PTSD and tinnitus have not been met. 38 U.S.C. §§ 1115, 5110, 7105 (2012); 38 C.F.R. §§ 3.4 (b)(2), 3.31, 3.204, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1966 to November 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran appeared at a hearing before the Decision Review Officer (DRO) on April 2018. A transcript of the hearing is in the Veteran’s file. Entitlement to an earlier effective date than February 5, 2015, for service connection of PTSD and tinnitus Service connection was initially granted for PTSD and tinnitus in a June 2015 rating decision, effective February 5, 2015, the earliest date the RO determined that the Veteran’s claim for benefits was received. However, the Veteran contends that he initially submitted a claim for benefits on August 14, 2013, and therefore the effective date for the award of service connection for PTSD and tinnitus should be August 14, 2013. Applicable law and regulations concerning effective dates state that, 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. See 38 U.S.C. § 5110(a)(b)(1); 38 C.F.R. § 3.400. The effective date for an award of disability compensation based on direct service connection is the day following separation from active service or the date entitlement arose, if claim is received within 1 year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). “Date of receipt” means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt must be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In the present case, the Veteran separated from his tour of active duty in November 1968. The Veteran testified at a hearing with the DRO that he submitted a claim and all the associated paperwork with the Abbeville County, Veterans Affairs Office in 2013. He followed up with the office several times but did not receive any updates as to his claim. He subsequently went to the Greenwood office was told that they “lost” the original claim and they would resubmit it in his presence. The claim was signed and dated August 14, 2013, but it was submitted via facsimile on February 5, 2015. See Hearing Testimony. There are no forms or documents in the claims file with a date-stamp of receipt by VA of August 14, 2013, or a date from that time until February 5, 2015. The Veteran contends that the August 14, 2013, claim was lost by VA and that his award of service connection should be effective as of that date. The Court has held that “[t]here is a presumption of regularity that public officers perform their duties ‘correctly, fairly, in good faith, and in accordance with law and governing regulations.” Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005). Courts presume that, “in the absence of clear evidence to the contrary,” public officers have “properly discharged their official duties.” Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992). Although the Veteran pointed to the signature date on the Form VA 21-526 as evidence that VA lost an earlier-filed claim, there is no evidence that VA ever received the claim prior to February 2015. The Veteran also points to the date he secured a power of attorney. Form VA 21-22 was signed on July 2013; however, it was not received by VA until February 2015. The Board acknowledges the earlier signature dates but attaches little probative value to the date it was signed, as it is not evidence of the date a claim is filed. The DRO stated he would conduct another search of the records to find any evidence of a lost claim, however, in a Supplemental Statement of the Case (SSOC), issued July 2018, the claim was denied, as no further evidence of an earlier claim could be located. See July 2018 SSOC. The Veteran also testified that the person with whom he filed his August 2013 claim is no longer at the Veterans Affairs Office, when prompted by the DRO to secure an affidavit from someone who could verify the Veteran submitted an August 2013 claim. See Hearing Testimony. The Veteran has not presented any clear evidence indicating that the August 2013 claim was actually submitted to VA or received by VA. (His interactions prior to 2015, appear to have been with a county office, rather than the Department of Veterans Affairs.) As such, the presumption of regularity attaches, and the Board finds that VA did not receive a service connection claim from the Veteran until February 5, 2015. Additionally, the claims file does not include any communication of record received by VA dated after August 2013 but prior to February 2015, that can be construed as an informal claim for benefits. 38 C.F.R. § 3.155 (a). Thus, in this case, the only date that could serve as a basis for the award of service connection is the date of receipt of the Veteran’s claim for service connection received on February 5, 2015. Therefore, the preponderance of the evidence is against an effective date earlier than February 5, 2015, for the grant of service connection, and the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b). MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Jaigirdar, Associate Counsel