Citation Nr: 18128158 Decision Date: 08/21/18 Archive Date: 08/21/18 DOCKET NO. 17-05 619A DATE: August 21, 2018 ORDER Entitlement to an effective date of March 2, 2011, for the grant of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT 1. On March 2, 2011, the Veteran submitted a claim for service connection for posttraumatic stress disorder (PTSD) that was denied by an unappealed June 2013 rating decision; a July 2015 rating decision granted service connection for PTSD, effective February 26, 2015, the date the reopened claim was received. 2. In the course of development of the February 2015 claim for service connection for PTSD, the RO obtained service department records created during the Veteran’s time in service, documenting an in-service stressor; the grant of service connection for PTSD was based, in part, on those records; because the receipt of service department evidence in 2015 is directly relevant to the issue of service connection for PTSD, the June 2013 decision must be reconsidered, and is no longer final. 3. The earliest date of claim for a PTSD (March 2, 2011) is later than the date entitlement arose (2010); therefore, the date of claim is the proper effective date. CONCLUSION OF LAW The criteria an effective date of March 2, 2011, for the grant of entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1975 to October 1978. Entitlement to an effective date of March 2, 2011, for the grant of entitlement to service connection for PTSD By rating action in July 2015, service connection was granted for PTSD, effective February 26, 2015. The Veteran claims that the effective date of the grant of service connection should be March 2, 2011, when he initially filed his claim for service connection. Unless specifically provided otherwise, the effective date of an award of compensation shall be the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2) (emphasis added). The Veteran’s original claim for service connection for PTSD was received by VA on March 2, 2011. In a rating decision dated in June 2013, the RO denied service connection for PTSD. He did not file a timely notice of disagreement with that determination, and, accordingly, the June 2013 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.109 (b), 19.25, 20.200, 20.201, 20.302; 20.304. The Veteran filed an application to reopen his claim on February 26, 2015, and the subsequent grant of service connection for PTSD, in a July 2015 rating decision, was made effective February 26, 2015, the date the reopened claim was received. When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases the effective date cannot be earlier than the subsequent claim to reopen. 38 U.S.C. §§ 5110 (a), (i), 5108; 38 C.F.R. § 3.400 (q), (r); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). The award can be made effective no earlier than the date of the new application. 38 U.S.C. §§ 5110 (a), (i), 5108; 38 C.F.R. §§ 3.156 (c), 3.400(q), (r). However, an exception to this rule occurs when the new and material evidence includes service department records. 38 C.F.R. § 3.156 (c); Vigil v. Peake, 22 Vet. App. 63 (2008). Specifically, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156 (c)(1). Service department records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156 (c)(1). Service department records do not include records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the JSRRC, or from any other official source. 38 C.F.R. § 3.156 (c)(2). In this case, in September 2011, a stressor statement was received from the Veteran wherein, in great detail, he described being involved in a physical fight with a sergeant during service. Reportedly, he was chocked by his sergeant during the altercation and in self-defense, he stabbed his attacker. The RO obtained service records, including the Veteran’s service treatment records. While these records documented disciplinary actions taken against the Veteran, the records did not specifically corroborate the Veteran’s reported stressor. Accordingly, in its June 2013 rating decision the RO determined that the evidence failed to provide credible evidence that the claimed stressor occurred. The complete service personnel file was not part of the record when the claim was decided. Following the Veteran’s application to reopen the claim for entitlement to service connection for PTSD, the Veteran’s complete military personnel records were obtained and associated with the claims file. These records contained evidence that confirmed the Veteran’s stressor, including investigation reports and witness statements. An award made based “all or in part” on additional service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156 (c)(3). Because no other provision applies, and because the date of claim is now March 2, 2011, the Board must determine when entitlement arose. The Veteran was discharged from service in 1978. His original claim for service connection for PTSD was received March 2, 2011. The Veteran has never disputed the fact that this was the earliest claim of record for service connection for PTSD. At that time, VA treatment records after 2010 documented a diagnosis of PTSD. He reported being exposed to several stressors in the past, including being attacked by a sergeant who tried to kill him during service. (Continued on the next page)   An award made based on all or in part on additional service treatment records is effective on the date entitlement arose or the date that VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156 (c)(3). Here, the date of claim, March 2, 2011, is later than the date entitlement arose for PTSD. Accordingly, the Board concludes that March 2, 2011 is the proper effective date for the award of service connection for PTSD. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); See Gilbert, 1 Vet. App. at 54. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs