Citation Nr: 18152706 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 15-40 081 DATE: November 27, 2018 ORDER An effective date earlier than prior to July 22, 2010, for the award of service connection for posttraumatic stress disorder (PTSD), is denied. An effective date earlier than August 12, 2011, for the award of a 10 percent disability rating for diabetes mellitus type II, is dismissed. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran filed an original claim of service connection for a nervous condition in April 1971, which reasonably encompassed a claim of service connection for the symptomatology now diagnosed as PTSD. The RO denied the claim in a July 1971 rating decision, and the Veteran did not appeal that determination. A petition to reopen was not received until July 22, 2010, which is the current effective date for the award of service connection 2. The Veteran’s claim for an effective date earlier than August 12, 2011, for the award of a 10 percent disability rating for diabetes mellitus type II, is a freestanding claim for an effective date. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than prior to July 22, 2010, for the award of service connection for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 2. The claim for an earlier effective earlier than August 12, 2011, for the award of a 10 percent disability rating for diabetes mellitus type II, must be dismissed. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Effective Date The effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). For reopened claims, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later, except in limited situations provided in § 20.1304(b)(1) of this chapter. See 38 C.F.R. § 3.400(r). (1) Date Entitlement Arose Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (‘nexus’) between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999). “[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). If a veteran whose petition to reopen is granted and the claim is ultimately granted “relies on the ‘receipt of the claim’ prong of section 3.400, rather than the ‘date entitlement arose’ prong, [the claimant] by definition had an entitlement to benefits that existed before the date of the relevant application to reopen.” Akers v. Shinseki, 673 F.3d 1352, 1359 (Fed. Cir. 2012). (2) Date of Claim A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. §5101(a)); 38 C.F.R. § 3.151. Once a decision has been made on a claim, a claimant and his representative will be notified in writing of any decision affecting the payment of benefits or granting relief. All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing; the right to initiate an appeal by filing a Notice of Disagreement (NOD) which will entitle the individual to a Statement of the Case (SOC) for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected. Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered. 38 C.F.R. § 3.103(f). The time period to appeal a VA decision does not does not commence, and the VA decision will not become final, if a veteran is not notified of the decision and his appellate rights. See Sellers v. Shinseki, 25 Vet. App. 265 (2012); Ingram v. Nicholson, 21 Vet. App. 232, 241 (2007). An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. An NOD must be filed within one year from the date that that the RO mailed notice of the rating decision. Otherwise, that determination becomes final. See 38 C.F.R. § 20.302(a). A timely filed NOD places the issue(s) into appellate status, which requires the issuance of an SOC. See 38 C.F.R. §§ 3.103(f), 19.26; see also, e.g., Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). A substantive appeal must be filed within 60 days from the date the RO mailed a claimant the SOC (or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends). 38 C.F.R. §§ 20.200, 20.300, 20.302. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. However, the filing of a timely substantive appeal, as opposed to an NOD, is not a jurisdictional bar to the Board’s jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a substantive appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Also, if new and material evidence is received during an applicable appellate period following a RO decision, the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009). VA has an express regulatory obligation to make a determination regarding the character of the new evidence submitted. An initial claim remains pending, despite a subsequent final decision, until VA determines that evidence timely submitted after a decision on the initial claim was not new and material under 38 C.F.R. § 3.156(b). Mitchell v. McDonald, 27 Vet. App. 431, (2015); Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014) (distinguishing Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008)). Moreover, except as otherwise provided, if at any time following issuance of a decision VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided a prior claim, VA will reconsider the claim. See 38 C.F.R. §§ 3.156(c), 20.1000(b). By operation of § 3.156(c), an original claim is not just reopened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted. Stowers v. Shinseki, 26 Vet. App. 550, 554 (2014). 1. An effective date earlier than prior to July 22, 2010, for the award of service connection for posttraumatic stress disorder (PTSD) Initially, the Board wishes to clarify the nature of the issue on appeal. In the September 2015 SOC, the RO identified the appealed issue as “[e]ntitlement to an earlier effective date for the 50 percent evaluation for the service connected for posttraumatic stress disorder (PTSD), prior to July 22, 2010.” The RO’s characterization does not correspond to his NOD. Specifically, the RO granted service connection in the November 2013 rating decision. The following month, December 2013, the Veteran filed an NOD identifying the issue as “Effective Date – PTSD // Effective date should be 1988 when I originally made my first claim.” The Veteran did not specifically appeal the effective date for the award of service connection, but such an appeal is implicit in his NOD because he was claiming entitlement to benefits earlier than the effective date of service connection. As a disability rating cannot be assigned earlier than the effective date for the award of service connection, a liberal reading of his NOD should have prompted the RO to consider his NOD as an appeal of the effective assigned for the award of service connection. There is no prejudice to the Veteran in proceeding at this point, despite the mischaracterization of the issue in the SOC, because the September 2015 SOC nonetheless addressed the question of whether an earlier effective date could be assigned for the award of service connection. However, as for the merits of the claim, the Board finds that an earlier effective is not assignable. The RO granted service connection for PTSD in the November 2013 rating decision on the basis of a private medical opinion and a VA opinion giving a diagnosis of PTSD related to service. The RO assigned an effective date “from July 22, 2010, the date your claim was originally received for reopen [sic] service connection for mental illness.” Because the claim was reopened and granted, there is no material dispute that entitlement to service connection for PTSD arose prior to July 22, 2010. See Akers v. Shinseki, 673 F.3d 1352, 1359 (Fed. Cir. 2012). The material question in dispute is whether the Veteran filed an earlier claim from which the effective date can be assigned. To this extent, the claims file shows that the Veteran filed an earlier claim of service connection, but he did not appeal the denial of that claim. Specifically, he filed an original claim of service connection in April 1971. He claimed service connection for a “nervous condition.” After obtaining a VA examination in May 1971, the RO issued a rating decision in July 1971. The RO denied service connection for a “nervous condition” diagnosed at the VA examination as anxiety neurosis. Notification of this decision was sent to his last known mailing address of record, and it was not returned as undeliverable. Accordingly, it is presumed he received it. See 38 C.F.R. § 3.1(q); Boyd v. McDonald, 27 Vet. App. 63 (2014); Crain v. Principi, 17 Vet. App. 182, 187 (2003); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). The Veteran did not then appeal the July 1971 determination and no new and material evidence was received prior to expiration of the appeal period. Accordingly, the original claim became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.103(f), 3.156(b)-(c), 20.200, 20.201, 20.300, 20.302, 20.1103. Additional service records were received in October 2010 and November 2012, which was after the original claim became final. These were official service department records that had not been previously associated with the claims file. However, an earlier effective date is not warranted under § 3.156(c). First, the RO granted service connection based on a “Certificate of Release or Discharge from Active Duty, DD Form 214, show[in]g you served in-country Vietnam, which is evidence of your exposure to combat stressful events, in-service stressor related to the fear of hostile military or terrorist activity.” To this extent, the claims file already contained a copy of the Veteran’s DD Form 214 at the time of the July 1971 rating decision. Section 3.156(c) does not apply because the only relevant information contained in the new service department records is further information that he served in Vietnam when the Veteran’s service in Vietnam was never in question and did not lead to the VA’s eventual award of benefits. See Blubaugh v. McDonald, 773 F.3d 1310, 1314 (Fed. Cir. 2014). Thus, an earlier effective date under § 3.156(c) is not warranted. Likewise, the RO conceded the stressor based on the regulation pertaining to fear of hostile military action. Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran’s service, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). Although the new PTSD regulation “liberalizes,” in particular circumstances, the evidentiary standard for establishing an in-service stressor, this regulatory change is not a liberalizing change for effective date purposes. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,843, 39,851 (July 13, 2010), corrected by 75 Fed. Reg. 41,092 (July 15, 2010) (Stressor Determinations). Accordingly, an earlier effective date is not assignable under § 3.114. Regardless, the Board observes that the Veteran’s current effective date is July 22, 2010, whereas the new regulation was made effective from July 13, 2010; any difference in date would not affect his payable disability compensation. See 38 C.F.R. § 3.31 (Compensation may not be made for any period prior to the first day of the calendar month following the month in which the award became effective). In a July 2018 appellate brief, the Veteran’s representative argued that an earlier effective date should be assigned because the Veteran was never provided a VA examination in 1971, when he had a “nervous condition,” which he alleges was actually PTSD even though he did not know the terminology of “PTSD” at that time. However, the representative’s arguments cannot justify an earlier effective date for two reasons: First, in his original claim the Veteran described, and VA had broadly construed, the claim as encompassing any nervous disorder. Thus, even if “PTSD” was not a known diagnosis by that time, the RO considered the claim to encompass any nervous disorder shown. Thus, his original claim encompassed the PTSD symptomatology, and it is not a pending, unadjudicated claim of service connection for PTSD. See Velez v. Shinseki, 23 Vet. App. 199, 204-05 (2009). Second, the Veteran was provided a VA examination, contrary to the representative’s argument. Even were he not provided a VA examination, the performance of a VA examination (or lack thereof) only bears on the question of when entitlement to service connection for PTSD arose. At present, it is not in material dispute that the Veteran has PTSD due to his service. So, any deficiency in the May 1971 would not support an earlier effective date. Thus, to summarize, the Veteran filed an original claim in April 1971. That claim reasonably encompassed a claim of service connection for the symptomatology now diagnosed as PTSD. The RO denied the claim in a July 1971 rating decision, and the Veteran did not appeal that determination. A petition to reopen was not received until July 22, 2010, which is the current effective date for the award of service connection. In light of the foregoing, the Board is unable to assign an effective date earlier than July 22, 2010, for the award of service connection for PTSD. The law requires that the effective date be the date of claim or the date entitlement arose, whichever is later. Because the later of these two dates in this case is the date the Veteran filed his petition to reopen on July 22, 2010, there is no legal basis to assign an effective date earlier than that date. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Consequently, the appeal for an earlier effective date for the award of service connection for PTSD is denied. 2. An earlier effective earlier than August 12, 2011, for the award of a 10 percent disability rating for diabetes mellitus type II As to this claim, the question for the Board is whether an earlier effective date for the award of a 10 percent rating for diabetes can be awarded. The Board finds that this claim must be dismissed as a matter of law as it is an impermissible freestanding claim for an earlier effective date. In the February 2016 statement of the case (SOC), the RO characterized the instant issue as entitlement to an earlier effective date for the award of a 10 percent disability evaluation. Notwithstanding this SOC, the exact rating decision and the issue the Veteran wished to appeal is not entirely clear. In a July 2014 notice of disagreement (NOD) form, he marked the option for “Effective Date of Award.” He handwrote “should be retroactive to 1988.” He identified a December 9, 2013 rating decision as the one he was appealing. The Board observes that there was no rating decision issued on that date. A rating decision was issued one month earlier, in November 2013, but it did not address diabetes. The next earlier rating decision addressing diabetes was an April 2013 decision denying an increased rating for the disability. After that, a March 2014 rating decision again denied an increased rating for diabetes. As the July 2014 NOD was received within one year of the March 2014 rating decision, but not the April 2013 rating decision, it is assumed that he wished to appeal the March 2014 decision. His appeal for benefits retroactive to 1988 is essentially an appeal for an earlier effective date for the award of service connection; he has only been service-connected for diabetes effective from August 2011—the current effective date of the 10 percent rating. Service connection for diabetes was granted in a February 2012 rating decision. The Veteran did not appeal the effective date assigned. He filed a claim for an increased rating in August 2012, which was within one year of the February 2012 rating decision, but his claim in no way referred to any disagreement with the effective date assigned. He did not expressly or implicitly dispute the effective date assigned until the December 2013 NOD. Because the December 2013 NOD was received after the one-year period for appealing the effective date assigned in the February 2012 rating decision, it represents a freestanding claim for an earlier effective date and, as a result, it must be dismissed as a matter of law. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). REASONS FOR REMAND Entitlement to a TDIU The Veteran contends that he is prevented from securing or following any substantially gainful employment as the result of his service-connected disabilities including posttraumatic stress disorder (PTSD), diabetes, and diabetic neuropathy of the upper and lower extremities. Although he submitted copies of some April 2018 VA treatment notes indicating ongoing VA treatment, complete VA treatment records have not been associated with the record since 2014. As his representative contends that these disabilities now prevent him from employment, the Board will remand to obtain the outstanding VA records and to afford him a contemporaneous examination. The matter is REMANDED for the following action: 1. Obtain VA treatment records dated to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any outstanding pertinent private treatment records. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician regarding the current effect of his service-connected disabilities on his employability. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his service-connected disabilities on his employment. The examiner should identify all limitations or functional impairment caused solely by the service-connected disabilities. (Continued on the next page)   4. Thereafter readjudicate the appeal. If the benefit sought is not granted in full, provide the Veteran and his representative with a supplemental statement of the case and afford an appropriate period for response prior to returning the matter to the Board. JEBBY RASPUTNIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Bosely, Counsel