Citation Nr: 1807980 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 11-26 496 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an effective date earlier than April 20, 2001 for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: George T. Sink, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. J. Tang, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to January 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). All documents on the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) have been reviewed, to include a transcript of the January 2017 Board hearing presided over by the undersigned Veterans Law Judge. In a January 2017 rating decision, the RO granted a partial increased disability rating for PTSD, denied service connection for intestinal tumor and stomach ulcer, and declined to reopen previously denied claims for service connection for a skin disorder and a lymphoid disability. The Veteran submitted a timely notice of disagreement as to these determinations in August 2017. The record indicates, such as in an August 2017 letter, that the RO has acknowledged receipt of the notice of disagreement, and this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999) (where an NOD had not been recognized). As the record reflects that the notice of disagreement has been recognized and that additional action is pending, a remand of the issue pursuant to Manlincon is not warranted with regard to these issues. FINDING OF FACT The Veteran's claim for service connection for PTSD was denied in a July 1999 Board decision; the Veteran's informal claim to reopen the previously denied claim for service connection for PTSD was received by VA on June 19, 2000; and, the date on which the claim to reopen was received is later than the date on which entitlement to service connection for PTSD arose. CONCLUSION OF LAW The criteria for an earlier effective date of June 19, 2000 for the grant of entitlement to service connection for PTSD have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The pertinent facts are not in dispute as discussed below. There is no additional information or evidence that could be obtained to substantiate the claim, and the VCAA is not applicable. See Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (citing Dela Cruz v. Principi, 15 Vet. App. 143 (2001)). Generally, the effective date of an evaluation and award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. A claim or an application to reopen a previously denied claim may be filed by paper submission, electronic filing, or phone call. See 38 C.F.R. § 3.155(b)(1) (providing that an intent to file a claim can be submitted by way of saved electronic application, written intent on a prescribed intent to file a claim form, or oral intent communication to designated VA personnel and recorded in writing); see also Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004) (VA has the responsibility of determining when an informal claim has been filed). The law provides that a submission can only be read as a claim for benefits if the submission demonstrates the claimant's intent to seek benefits for the identified symptoms or disability. See e.g., Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). However, the mere presence of medical evidence of a disability does not establish an intent on the part of the [claimant] to seek benefits for a disability. See Talbert v. Brown, 7 Vet. App. 352 (1995) (holding that "[t]he 'liberal reading' requirement does not require the Board to conduct an exercise in prognostication, but only requires that it consider all issues reasonably raised by the appellant's substantive appeal...there must be some indication in the appellant's [substantive appeal] that he wishes to raise a particular issue before the Board. The indication need not be expressed or highly detailed; it must only reasonably raise the issue.". The Veteran contends that an effective date of January 1, 1970 is warranted for the grant of service connection for PTSD, as reflected in his December 2009 statement. The Veteran's contention is based on the argument that entitlement to this benefit arose in January 1970. The Veteran also essentially contends, as reflected in the January 2017 Board hearing testimony, that an effective date earlier than April 20, 2001 for the grant of service connection for PTSD is warranted because he alleges that the July 1999 Board decision should have granted service connection for PTSD. The evidence shows that the Veteran's original claim for entitlement to service connection for PTSD was denied in a July 1999 Board decision. The Veteran has not submitted any statement that may be construed as a motion for clear and unmistakable error (CUE) in the July 1999 Board decision to deny service connection for PTSD. The Board also notes that, as reflected in the January 2017 Board hearing testimony, the Veteran's representative declined to pursue any such CUE collateral attack on the finality of the July 1999 Board decision at that time, and to this date, no such CUE motion has been submitted. Accordingly, no motion for CUE in the July 1999 Board decision has been raised. The July 1999 Board decision is final, as discussed in the April 2006 Board decision which reopened the previously denied claim for PTSD. After the July 1999 Board decision, the Veteran submitted a statement, received by VA on June 19, 2000, in which the Veteran stated that he would like to make an appointment for medical review concerning his inability to sleep or focus. He stated that he has a terrible nervous condition, and he essentially stated that this is due to patrolling in the woods in Vietnam. He also stated, "Any help will greatly be appreciated." Per an August 2000 deferred rating decision, it appears that the RO considered this only as a claim for treatment and not as a claim for service connection, and the RO then sent the Veteran an August 2000 letter asking him what type of medical appointment he is seeking. No further communications from the Veteran or his representative was received thereafter, until the Veteran submitted a statement, received by VA on April 20, 2001, which the RO construed as the Veteran's informal claim to reopen his previously denied claim for PTSD. The Veteran then submitted his formal claim for service connection for PTSD, received on June 18, 2001. The Veteran's claim for service connection for PTSD was eventually granted in a May 2009 Board decision. The RO effectuated this grant of service connection in a June 2009 rating decision, in which the RO assigned an effective date of April 20, 2001. The Veteran appealed the effective date assignment. Based on the above communications, the Board sympathetically construes the Veteran's June 19, 2000 statement as one that demonstrates the Veteran's intent to seek VA benefits, to include service connection benefits, for his symptoms of PTSD. Thus, an earlier effective date of June 19, 2000, the date of the Veteran's informal claim to reopen the claim for PTSD, is warranted. The Board finds no communications from the Veteran or his representative prior to June 19, 2000 and after the July 1999 final Board decision that may be considered a formal or informal claim. The Board acknowledges that there is evidence of record prior to June 19, 2000 that indicates PTSD, to include medical treatment for PTSD symptoms. However, as discussed above, the July 1999 Board decision, which denied service connection for PTSD, is final. Further, medical evidence of a disability alone does not show an indication of the Veteran's intent to seek benefits for that disability. The Board is bound by the law, and in this case there are no communications prior to June 19, 2000 and after the July 1999 final Board decision from the Veteran or from any authorized representative that demonstrates an intent to seek VA benefits for his PTSD. Based on the above, the earliest effective date for the grant of service connection for PTSD is June 19, 2000, the date of receipt of the Veteran's informal claim to reopen for service connection for PTSD. 38 C.F.R. § 3.400. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an earlier effective date of June 19, 2000, for the grant of service connection for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs