Citation Nr: 1807924 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 12-10 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date prior to April 6, 2004, for the award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to July 1970. The Veteran died on August [REDACTED], 2012. The appellant is the Veteran's surviving spouse. In June 2017, the RO approved the substitution of the appellant under 38 U.S.C.A. § 5121A for purposes of processing this appeal to completion. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that granted service connection for PTSD and assigned an effective date of March 25, 2005. A September 2006 rating decision awarded an earlier effective date for service connection for PTSD of April 6, 2004. The appellant continues the appeal of entitlement to an earlier effective date. On his April 2012 substantive appeal, the Veteran requested a Travel Board hearing. Subsequently, in October 2017, the appellant requested in writing that the scheduled Travel Board hearing be canceled. Therefore, the request for a Board hearing is considered withdrawn. FINDING OF FACT On February 26, 2002, the Veteran filed an original claim for service connection for PTSD (stamped-received date); there was no communication received prior to that date indicating an intent to file a claim. CONCLUSION OF LAW The criteria for an earlier effective date of February 26, 2002, for the award of service connection for PTSD have been met. 38 U.S.C.A. § 5110 (2012); 38 C.F.R. § 3.400 (2015 prior to March 24, 2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the appellant's claim for an earlier effective date for service connection for PTSD, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017). For effective date claims, where service connection has been granted and the claimant has appealed the effective date, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the effective date does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to notice is nonprejudicial. See Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, 22 Vet. App. 128 (2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). The Board also concludes that VA's duty to assist has been satisfied. The appellant has not identified any outstanding records for VA to obtain. Neither the appellant nor her representative identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Analysis Except as otherwise provided, the effective date of an award of service connection based on an original claim, or a claim reopened after final disallowance, "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400 (2017); see also 38 U.S.C.A. § 5110(a) (2012); Sears v. Principi, 16 Vet. App. 244 (2002). Effective on March 24, 2015, VA amended its regulations, effectively eliminating informal claims and requiring a "complete claim" on a form proscribed by the Secretary. See 38 C.F.R. §§ 3.155, 3.160 (2017). However, prior to March 24, 2015, which is the time relevant time period in this appeal, "any communication or action indicating an intent to apply for one or more benefits under the laws administered by [VA] ... may be considered an informal claim. Such informal claim must identify the benefit sought." 38 C.F.R. § 3.155(a) (2014). The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Likewise, the effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. See Lalonde v. West, 12 Vet. App. 377 (1999). The appellant claims entitlement to an effective date prior to April 6, 2004, for the award of service connection for the Veteran's PTSD. On August [REDACTED], 2012, the Veteran died. The appellant, the Veteran's surviving spouse, continues the appeal by way of substation under 38 U.S.C.A. § 5121A. On February 26, 2002 (stamped-received date), the Veteran filed a claim of entitlement to service connection for PTSD. An October 2002 rating decision denied the claim. The Veteran filed a January 2003 notice of disagreement. A February 2004 statement of the case (SOC) was issued (albeit labeled as dated December 2004 in VBMS). Subsequently, the Veteran filed a February 2004 substantive appeal. A VA examination was performed on March 25, 2005, which VA examiner diagnosed PTSD. An April 2005 rating decision granted service connection for PTSD, and assigned an effective date of March 25, 2005, the date of the VA examination. The Veteran filed a May 2005 notice of disagreement as to the effective date for service connection, a March 2012 SOC was issued, and the Veteran filed an April 2012 substantive appeal. Meanwhile, as noted in the introduction, a September 2006 rating decision awarded an earlier effective date for service connection for PTSD of April 6, 2004, citing a treatment record of that date that shows diagnosed PTSD. The effective date of an award for service connection "shall not be earlier than the date of receipt of application therefor." See 38 U.S.C.A. § 5110(a). In this case, the Veteran's informal claim for service connection for PTSD was stamped as received on February 26, 2002. The Board acknowledges that there is no record of diagnosed PTSD in the claims file until April 6, 2004, as cited by the RO in the September 2006 rating decision. At the same time, however, the Board acknowledges the Veteran's assertion in his April 2012 substantive appeal that although he was not diagnosed formally with PTSD until 2004, he was experiencing symptoms of PTSD in 2002 when he filed his claim for service connection. In that regard, the Board also acknowledges that the Veteran was apparently incarcerated from November 2001 to September 2003. See Form 21-4193, May 2002; Correspondence, January 2003; Certificate of Discharge, September 2003. Likewise, there is no record of treatment by VA during that period. Shortly thereafter, a November 2003 VA medical center social work record shows it was noted that "the Veteran's flashbacks and nightmares appear to be symptomology of PTSD," and he was scheduled for psychiatric evaluation in April 2004. See VA treatment records, received May 2004 at p.16 of 27. The April 6, 2004 VA psychiatric evaluation record shows PTSD was diagnosed. See VA treatment records, received May 2004 at p.1 of 27. Likewise, PTSD was diagnosed by the subsequent March 2005 VA examiner. The Board finds that in this particular case, there is no reason to believe that the Veteran was not experiencing symptoms of his PTSD at the time he filed his claim for service connection for such on February 26, 2002, albeit not formally diagnosed until he was able to present for a psychiatric evaluation at the VA medical center in April 2004. Therefore, resolving all doubt in the appellant's favor, the Board finds entitlement to an earlier effective date for service connection for PTSD of February 26, 2002, is warranted, which is the date the claim for service connection was stamped as received by VA. Therefore, in summary, the Board concludes that entitlement to an earlier effective date of February 26, 2002, for the award of service connection for PTSD is warranted. ORDER Entitlement to an effective date of February 26, 2002, for the award of service connection for PTSD is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs