Citation Nr: 18152455 Decision Date: 11/23/18 Archive Date: 11/21/18 DOCKET NO. 16-52 807 DATE: November 23, 2018 ORDER Entitlement to an effective date prior to October 7, 2011, for the grant of service connection for posttraumatic stress disorder (PTSD), to include adjustment disorder with depression (hereinafter, an acquired psychiatric disability) is denied. FINDINGS OF FACT 1. In December 2010, the Veteran filed a claim to establish service connection for a low back disability with accompanying statements and evidence; however, his statement and claim did not include the issue of entitlement to service connection for an acquired psychiatric disability. 2. On October 7, 2011, VA received from the Veteran a claim to establish service connection for PTSD. 3. An August 2014 rating decision granted service connection for an acquired psychiatric disability and assigned an effective date of October 7, 2011, for this award. 4. No formal or informal claim to establish service connection for an acquired psychiatric disability was received or adjudicated by VA prior to October 7, 2011. CONCLUSION OF LAW The criteria for an effective date prior to October 7, 2011, for the award of service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.326(a), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1967 to October 1969. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, that established service connection for an acquired psychiatric disability; a 100 percent initial evaluation was assigned, effective from October 7, 2011. The Veteran expressed disagreement with the assigned effective date of this award, and the present appeal ensued. Preliminary matters Initially, the Board observes that the spelling of the Veteran’s last name is different on his service records than on his more-recent filings. As the file is devoid of any evidence that the Veteran has legally changed the spelling of his last name, the Board has amended the title page of this decision to reflect both variations of the Veteran’s last name. Throughout June 2016, the Veteran filed no fewer than 17 statements (mostly duplicates) alleging that the Agency of Original Jurisdiction (AOJ) committed Clear and Unmistakable Error (CUE) in assigning the effective date of October 7, 2011, for the award of service connection for an acquired psychiatric disability. While the Board notes these assertions, such a CUE claim cannot be fruitful at this time because the August 2015 rating decision that assigned this effective is currently on appeal to the Board, and thus, it is clearly not final. As such, the Board will not refer the Veteran’s CUE claim to the AOJ. 1. Entitlement to an effective date prior to October 7, 2011, for the grant of service connection for an acquired psychiatric disability VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). See the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) With respect to the appeal for and earlier effective date, resolution of this issue turns on the law as applied to the undisputed facts regarding the date of receipt of claim and date entitlement arose. As the effective date issue decided herein turns on a matter of law, further assistance, such as the further procurement of records or VA examinations, would not assist the Veteran with the appealed issues. Consequently, no further notice or development under the VCAA is warranted with respect to these particular issues. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Earlier Effective Dates The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 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. 79 Fed. Reg. 57660 (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 in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old 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. 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) (in effect prior to March 24, 2015). 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). A report of VA examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b)(1) (in effect prior to March 24, 2015). The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree. Analysis The Veteran seeks an effective date earlier than October 7, 2011, for the award of service connection for an acquired psychiatric disability. In several statements submitted during the pendency of the appeal, the Veteran alleges that the effective date of this award should either be in September 2010, when VA medical professionals noted his initial diagnosis of PTSD, or on December 8, 2010, the date the Veteran claims that the AOJ received his initial claim to establish service connection for an acquired psychiatric disability. Following a review of the record, the Board finds that an effective date earlier than October 7, 2011, is not warranted with regard to the grant of service connection for an acquired psychiatric disability. On December 8, 2010, the Veteran filed a petition to reopen a previously-denied claim to establish service connection for a low back disability. This claim and accompanying statements did not include the issue of entitlement to service connection for an acquired psychiatric disability. On October 7, 2011, the AOJ received from the Veteran a formal claim to establish service connection for PTSD. In a June 2013 provisional rating decision, the RO in Manchester, New Hampshire, among other actions, proposed to deny the Veteran’s PTSD claim. The notice letter accompanying this rating decision explained that the determinations in the rating decision were provisional, but would become final unless further argument and/or evidence was submitted by the Veteran. In the months following the June 2013 provisional rating decision and accompanying notice letter, the Veteran and his private agent submitted a statement requesting reconsideration of the proposed denial of his PTSD claim, additional evidence in support of the claim, and a supplemental claim to establish service connection for depression, claimed as secondary to a service-connected low back disability. In the November 2012 rating decision, the AOJ established service connection for PTSD with Major Depressive Disorder, alcohol abuse, and cannabis abuse; a 70 percent initial evaluation was assigned from October 7, 2011 – the date that the AOJ received the Veteran’s formal claim to establish service connection for PTSD. To the extent that the Veteran asserts that the effective date of this award should be the date of his initial PTSD diagnosis from a VA provider (September 2010), experienced psychiatric symptoms during and since service, VA treatment, examination, and hospitalization reports noting symptoms or psychiatric diagnoses cannot be construed as informal claims to establish service connection because prior, formal claims for psychiatric disabilities had not been disallowed for the reason that the service-connected disability is not compensable in degree. The Veteran’s other assertion, that his initial claim for an acquire psychiatric disability was received by VA on December 8, 2010, is also without merit. The Veteran’s December 2010 claim and accompanying statements are devoid of any allusion to any acquired psychiatric disability or symptoms of such. As stated above, this claim, statement, and evidence pertained to a low back disability only. In support of his argument, the Veteran cites a sentence in the notice letter accompanying the June 2013 provisional rating decision stating that the “claim” denied by the AOJ was that which was filed by the Veteran in December 2010. The Veteran has consistently cited this sentence as “proof” that the AOJ considered his PTSD claim to have been filed in December 2010. While the Board does not contest the language used in this letter, it is clear that the date cited pertains to the Veteran’s claim to establish service connection for a low back disability. While it would have been clearer had the AOJ listed separate dates of receipt for the two claims, this incomplete recitation of facts does not bind VA to concede the effective date of this award. In sum, VA did not receive any claim, formal or informal, to establish service connection for any acquired psychiatric disability prior to October 7, 2011. Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). The Veteran has not pointed to any communication or document that could serve as an earlier, unadjudicated claim to establish service connection for an acquired psychiatric disability. Having determined that the Veteran's formal claim was filed no earlier than October 7, 2011, the Board must now determine when entitlement to service connection arose. As noted, an effective date is assigned based on the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Thus, even though the Veteran has been experiencing psychiatric symptoms during and since his separation from service, October 7, 2011, is clearly the later of two dates specified by law. Hence, on this record, an earlier effective date is not assignable by law. In light of the above, the Board finds that the appropriate effective date for the grant of service connection for an acquired psychiatric disability is October 7, 2011 – the effective date assigned by the AOJ in the August 2014 rating decision. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (c)(3)(ii). As there is no legal basis for the assignment of an earlier effective date, the claim for an earlier effective date for the award of service connection for an acquired psychiatric disability must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel