Citation Nr: 18155086 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-39 481 DATE: December 4, 2018 ORDER Entitlement to an effective date earlier than September 30, 2015 for the grant of service connection for post-traumatic stress disorder (PTSD) is denied. Entitlement to an effective date earlier than September 30, 2015 for the grant of dependents’ educational assistance (DEA) under U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. The Veteran’s only claim for service connection for PTSD was received on September 30, 2015; there is no earlier claim for service connection for PTSD. 2. Service connection for PTSD and the assignment of a 100 percent disability evaluation is in effect as of September 30, 2015; there is no basis upon which to base the award of DEA under U.S.C. Chapter 35 prior to September 30, 2015. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 30, 2015 for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 1155, 511 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2018) 2. The criteria for an effective date earlier than September 30, 2015 for the award of basic eligibility for DEA under 38 U.S.C. Chapter 35 have been not been met. 38 U.S.C. §§ 3501, 5110 (2012); 38 C.F.R. §§ 3.400, 21.3020, 21.3021 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from January 1973 to February 1976. The Veteran has alleged that the agency of original jurisdiction (AOJ) committed clear and unmistakable error (CUE) in the assignment of the effective dates at issue in the present case. Yet, he has not pointed to any error of law or fact in the contested rating decision. Accordingly, the AOJ has not developed the claim as one involving CUE. The Board concurs, and will continue the adjudication of the issues below. Should the Veteran wish to argue specific errors of law or fact in the May 2016 rating decision, he may file a claim for CUE with the AOJ. The regulations governing effective dates for service connection claims are clear: the effective date is the date of receipt of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400 (b)(2)(i). If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). Otherwise, 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). Public Law 115-154, Section 506, amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date award of disability compensation based on fully developed original claims for compensation that VA received from August 6, 2013, through August 5, 2015, under the Fully Developed Claim (FDC) Program. See VA Form 21-526EZ. However, as the Veteran’s claim was received in September 2015, the retroactive effective date provided under the FDC Program is not here for application. For the purposes of educational assistance under 38 U.S.C. Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) The veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran’s death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807(a), 21.3021. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. The Veteran contends that service connection for PTSD should be in February 1976 on the day after his discharge from active service. See June 2016 notice of disagreement; August 2016 Substantive Appeal. A review of the record shows the Veteran filed his initial claim for service connection for PTSD, along with other disorders, on September 30, 2015. See VA Form 21-526EZ (rec’d 9/30/2015). The claim for service connection for PTSD was ultimately granted by a May 2016 rating decision, evaluated as 100 percent disabling, effective September 30, 2015, the date of receipt of the claim. The record reveals no earlier claim—formal or informal—for service-connection for any disability, including PTSD, prior to the claim received on September 30, 2015; and the Veteran has not asserted that such a claim was made. Thus, the earliest possible date for service connection is the date of receipt of the Veteran’s application for service connection, which is September 30, 2015, the current date of service-connection. Therefore, there is no legal entitlement to an effective date prior to September 30, 2015 for service connection for PTSD. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Accordingly, the Board finds that the criteria for an effective date earlier than September 30, 2015 for service connection for PTSD is not warranted. 1. Entitlement to an effective date earlier than September 30, 2015 for the grant of DEA. The Veteran also seeks an earlier effective date for entitlement to DEA under 38 U.S.C., Chapter 35, based upon the contention, discussed above, that he is entitled to an earlier effective date for service connection for PTSD, which is evaluated as 100 percent disabling. The Veteran was granted entitlement to DEA based on the assignment of a 100 percent evaluation for his service-connected PTSD. In addition, the evidence of record shows that he was discharged from service under honorable conditions and has a permanent ant total service-connected disability. The Veteran is also service connection for the residuals of nasal fracture, evaluated as zero percent disabling, and for the residuals of fifth metatarsal fracture of the right food, also evaluated as zero percent disabling—both effective September 30, 2015. The Veteran has no other service-connected disabilities, and the combined evaluation of 100 percent is based solely on the service-connected PTSD. By this decision, an effective date earlier than September 30, 2015 for the grant of service connection for PTSD is denied. This date, in this case, is also the effective date of the assignment for a 100 percent evaluation for the service-connected PTSD. As noted above, the record presents no evidence on which an effective date earlier than September 30, 2015 for the grant of service connection for PTSD and the assignment of a 100 percent evaluation for PTSD may be assigned. Therefore, there is no legal entitlement to an effective date prior to September 30, 2015 for entitlement to DEA. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 3.807 (a), 21.3021. Accordingly, an effective date earlier than September 30, 2015 for entitlement to DEA is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L.J. Bakke, Counsel