Citation Nr: 1808555	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  17-40 242	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an effective date earlier than May 1, 2017, for the award of service connection for posttraumatic stress disorder (PTSD). 


REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

Sara Schinnerer, Counsel 






INTRODUCTION

The Veteran had honorable active duty service with the United States Army from November 2008 to November 2012. 

This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted entitlement to service connection for PTSD, and assigned a 70 percent evaluation effective May 1, 2017.  The Veteran appealed the effective date of the 70 percent evaluation in a Notice of Disagreement received in June 2017.

In his July 2017 substantive appeal, the Veteran requested a videoconference hearing before the Board at a local VA office.  In October 2017, the Veteran testified before the undersigned Veterans Law Judge.  A written transcript of this hearing was prepared and associated with the evidence of record.  

The record before the Board consists solely of the Veteran's electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The request to reopen a claim of entitlement to service connection for PTSD was not received prior to May 1, 2017.






CONCLUSION OF LAW

The criteria for establishing entitlement to an effective date prior to May 1, 2017, for the award of service connection for PTSD, have not been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

There is no indication in this record of a failure to notify.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.

The record reflects that all pertinent available service treatment records, available service personnel records, and post-service medical records identified by the Veteran have been obtained.  Determinations regarding effective date of awards are based, essentially, on what was shown by the record at various points in time and application of governing law to those findings, and generally further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding.  The Veteran has not identified any pertinent evidence that remains outstanding and is potentially relevant to the claim.  The record documents that available service records, VA outpatient treatment records, examination report, and post-service medical evidence identified by the Veteran as relevant for the period in question, i.e. that dating prior to May 1, 2017, have been obtained.

Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. 

Accordingly, the Board will address the merits of the claim.

II.  Legal Criteria - Effective Date

Generally, the effective date of an award based on an original claim for compensation benefits, if received more than one year after the claimant's discharge from service, shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i).  The effective date, "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore."  38 U.S.C.A. § 5110 (a). 

The effective date of an award of disability compensation based on new and material evidence (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (q)(1)(ii). However, new and material evidence received prior to the expiration of the period to appeal a rating decision (one year after notice of the decision is sent) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.  See 38 C.F.R. § 3.156 (b).

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151 (a).  A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim.  Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  38 C.F.R. § 3.155 (a).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

III.  Factual Background and Analysis

In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal.

The Veteran contends that he is entitled to an effective date prior to May 1, 2017, for the grant of service connection for PTSD.  

In September 2014, the Veteran submitted a VA form 21-526, Veteran's Application for Compensation and Pension claiming entitlement to service connection for PTSD.  In a November 2015 rating decision, the RO confirmed and continued the previous denial of service connection for PTSD.  The rating decision notes that the Veteran was previously denied service connection for PTSD in a May 2014 rating decision because there was no current diagnosis of a psychiatric disorder, as the Veteran failed to appear for his scheduled VA examination.  In addition, the service personnel records did not include makers or behavioral changes that supported the claimed in-service sexual assault, nor did they demonstrate deployment orders or evidence showing that the Veteran served in a combat area.  Notification of the decision was sent to the Veteran's last known address.  The Veteran did not appeal the decision or submit additional evidence within one year of the issuance of the decision.  Therefore, the November 2015 rating decision became final.  See 38 U.S.C.A. § 7104; 38 C.F.R. §§ 20.1100, 20.1104.

On May 1, 2017, the Veteran submitted a VA form 21-526 claiming entitlement to service connection for PTSD.  Service connection was ultimately awarded in the May 2017 rating decision on appeal.  The effective date of the award of service connection was May 1, 2017 -the date of receipt of the claim to reopen. 

Review of the record shows that there was no communication or treatment records that could be interpreted as a new claim for service connection for a psychiatric condition, formal or informal, received subsequent to the November 2015 rating decision and prior to May 1, 2017.

Given the foregoing, there is no basis for the assignment of an effective date for the grant of service connection for PTSD prior to May 1, 2017.  See 38 C.F.R. § 3.400 (q)(1)(ii), (r); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997) (holding that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application).  Because of the denial of the claim in the November 2015 final rating decision, the earliest effective date that can be assigned in this case is the date of receipt of the Veteran's claim to reopen the claim for service connection for a psychiatric condition.  His claim to reopen was filed on May 1, 2017, and he does not claim, nor does the evidence show, that he filed a formal or informal claim to reopen prior to that date.  Accordingly, May 1, 2017, is the earliest effective date that can be assigned for the grant of entitlement to service connection for PTSD.

As no earlier effective date is permitted by law, the benefit sought on appeal must be denied.


ORDER

An effective date prior to May 1, 2017, for the award of entitlement to service connection for PTSD is denied. 



____________________________________________
B. MULLINS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs