Citation Nr: 1824203 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 14-11 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an effective date prior to October 23, 2009, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran, Veteran's Spouse ATTORNEY FOR THE BOARD G. Morales, Associate Counsel INTRODUCTION The Veteran had active service in the United States Navy from October 1964 to December 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in October 2016. A transcript is of record. The Board notes that there is mention of clear and unmistakable error (CUE) in the October 2016 hearing regarding the Board's September 2008 decision. However, the Board does not construe the Veteran's assertions as a motion for revision of the September 2008 Board decision as they do not comply with the motion requirements to file a claim of clear and unmistakable error under 38 C.F.R. § 20.1404 (2017). FINDINGS OF FACT 1. In a September 2008 Board decision, the Board denied service connection for PTSD. The Veteran did not appeal the decision, and the decision is final. 2. On October 23, 2009, the Veteran sought to reopen his previously denied claim of service connection for PTSD, and in March 2011, the RO granted the claim for service connection for PTSD, effective October 23, 2009 - the date of the claim to reopen. 3. The earliest date of a claim of entitlement to service connection for PTSD is October 23, 2009. CONCLUSION OF LAW 1. The criteria for an effective date earlier than October 23, 2009 for service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal arises from disagreement with the effective date assigned following the grant of service connection. The courts have held that once service connection is granted, the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In this case, the Veteran's claim for an earlier effective date rests on the interpretation and application of the relevant law. The VA's duties to notify and assist do not affect matters on appeal when the issue is limited to statutory interpretation. See Maon v. Principi, 16 Vet App. 129 (2002); see also VAOPGCPREC 2-2004 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). There is no possibility that any additional notice or development would aid the Veteran in substantiating this claim at this time. 38 U.S.C. §§ 5103, 5103A (2012). Thus, any possible deficiency of notice or of the duty to assist constitutes merely harmless error. As such, the Board will proceed with consideration of the Veteran's appeal. Earlier Effective Date The Veteran contends that he is entitled to an effective date for service connection of PTSD from September 30, 2003- the date of his original claim. Generally, for an original claim or a claim reopened after final adjudication, the effective date can be no earlier than the date of the claim. 38 U.S.C. § 5110(a); 38 C.F.R. 3.400 (2017) (stating that the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later). 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). A claim for VA compensation must generally be in the form prescribed by the VA Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, however, received from the claimant, or certain specific individuals on the claimant's behalf, that indicates intent to apply for a benefit, and identifies that benefit, may be considered an informal claim. 38 C.F.R. § 3.155(a). The effective date for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i); 38 U.S.C. § 5110(a). If a claimant does not appeal an RO or Board decision assigning an effective date for service connection, the decision becomes final. See Person v. Brown, 5 Vet. App. 449, 450 (1993); see also DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) ("Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded."). The effective date of a claim received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(q)(2), (r). The Veteran filed his initial claim for PTSD on September 30, 2003. See 9/30/2003, VA 21-526. The RO denied the claim on January 6, 2004. He filed a timely notice of disagreement on January 22, 2004. The Board remanded the issue in August 2005 and March 2008, and denied the issue of service connection for PTSD in September 2008. The Veteran did not file an appeal to the Court, and the September 2008 Board decision is final. 38 U.S.C. § 7103(a); 38 C.F.R. §20.1100 (2017). Following the September 2008 Board denial, the Veteran filed a claim to reopen on October 23, 2009, for service connection for PTSD. The RO again denied the claim for PTSD in two December 2009 rating decisions, and a February 2010 rating decision. In a March 2011 rating decision, the RO granted service connection from October 23, 2009 - the date of the Veteran's claim. The Board finds that the October 23, 2009 effective date for service connection for PTSD is the earliest possible effective date that can be assigned by law. The September 2008 Board decision that denied entitlement to service connection for PTSD was final. The Veteran did not submit a claim to reopen his claim until October 23, 2009. He does not contend that there were any unadjudicated claims prior to this date, and none are shown by the record. By regulation, the effective date for service connection for a claim received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. In this case, the date of recipe of the new claim is October 23, 2009. The date of entitlement cannot provide for an effective date prior to October 23, 2009 as, even assuming entitlement existed prior to October 23, 2009, the claim was not received until that date. Therefore, the Board finds that the October 23, 2009, is the correct effective date, and there is no basis for an effective date for service connection for PTSD prior to this date. 38 C.F.R. § 3.400 (q), (r). For the above reasons, the Board concludes that an effective date earlier than October 23, 2009, for the grant of service connection for PTSD, is not warranted. ORDER An effective date prior to October 23, 2009, for the grant of service connection for PTSD is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs