Citation Nr: 18158348 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-58 598A DATE: December 14, 2018 ORDER An effective date earlier than May 9, 2011, for the grant of service connection for post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a rating higher than 50 percent for PTSD is remanded. FINDING OF FACT 1. The Veteran did not appeal or submit new and material evidence within the one-year appeal period following the original denial of service connection for PTSD on May 5, 2010; thus, the decision became final. 2. On May 9, 2011, the VA received corresponded from the Veteran’s; this has been construed as petition to reopen the prior final disallowance of service connection for PTSD. 3. On October 18, 2011 the agency of original jurisdiction (AOJ) granted the Veteran’s claim to reopen and awarded service connection for PTSD, effective May 9, 2011. 4. A confirmed diagnosis for PTSD is first shown on May 17, 2011 VA examination. CONCLUSION OF LAW The criteria for an effective date earlier than May 9, 2011 for the grant of service connection for PTSD are not met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.156, 3.400(q), (r). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1969 to October 1970. This case comes before the Board of Veteran’s Appeals (Board) on appeal of an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for PTSD effective May 9, 2011. 1. Entitlement to an effective date earlier than May 9, 2011, for the grant of service connection PTSD. The Veteran contends that that an effective date earlier than May 9, 2011, for the grant of service connection for PTSD is warranted based on “incidents [he] outlined in [his] original filing.” See NOD (December 2011). The Board concludes that, although the record shows a long history of psychiatric problems prior to the date of the grant of service connection for PTSD, the effective date of the award of compensation based on a claim reopened after final disallowance is by law the date of receipt of the claim. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 3.400(q)(2). Historically, the Veteran did not appeal or submit new and material evidence within the one-year appeal period following the original denial of service connection for PTSD on May 5, 2010; thus, the decision became final. On May 9, 2011, the VA received corresponded from the Veteran’s; this has been construed as petition to reopen the prior final disallowance of service connection for PTSD. On October 18, 2011 the AOJ granted the Veteran’s claim to reopen and awarded service connection for PTSD, effective May 9, 2013. The Veteran has not identified nor has the Board’s review of the record disclosed a formal or informal claim for benefits prior to May 9, 2011, and after the AOJ’s May 5, 2010 final decision. See 38 C.F.R. §§ 3.1(p), 3.155(a). See also Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). The evidence provides no basis for an award of service connection prior to May 9, 2011. Additionally, it is noted that the record does not include a confirmed diagnosis for PTSD until May 17, 2011 VA examination, and that generally an award of benefits is the later of the date of claim or the date entitlement arose. Hence, the fact that the confirmed diagnosis of PTSD post-dates the grant of the award is not evidence weighing the Veteran’s favor. See 38 C.F.R. § 3.400. The Board acknowledges that, when the Veteran’s May 9, 2011 correspondence, with a request for “additional time to document” his case for PTSD, was received, the May 2010 rating decision had not yet become final. However, the Board finds that Veteran’s correspondence did not include new and material evidence and, hence, it did not preclude finality attaching to the May 5, 2010 rating decision. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND 2. Entitlement to a rating higher than 50 percent for PTSD is remanded. The Veteran contends that the symptoms of his PTSD warrant a higher rating. Of record are a September 2011 VA examination and a November 2014 PTSD Disability Benefits Questionnaire completed by a private practitioner. In a December 2016 statement, the Veteran indicated that he was in the process of obtaining a new PTSD examination from a private practitioner. No subsequent examination has been associated with the record. As the evidence shows that there is outstanding pertinent evidence and/or that the service-connected disability has worsened since the last VA examination, remand is necessary. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2016 to the Present. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers that treated or evaluated his PTSD since December 2016. Make two requests for the authorized records from all identified sources, 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 to determine the severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of his symptoms. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel