Citation Nr: 19178294 Decision Date: 10/11/19 Archive Date: 10/11/19 DOCKET NO. 15-16 660 DATE: October 11, 2019 ORDER An effective date earlier than May 13, 2011 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. An effective date earlier than May 13, 2011, for the assignment of an increased 20 percent rating for a right shoulder disability is denied. FINDINGS OF FACT 1. In a final August 2008 rating decision, the regional office denied service connection for PTSD and granted service connection for a right shoulder disability, assigning a noncompensable rating effective April 6, 2006, which was the date VA first received a signed, substantially complete application for VA compensation benefits. 2. The Veteran did not file an application to reopen the claim of service connection for PTSD or a claim for an increased rating for the right shoulder disability until VA received the informal claim on May 13, 2011. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than May 13, 2011, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302, 20.1103. 2. The criteria for an effective date earlier than May 13, 2011, for the assignment of an increased 20 percent rating for a right shoulder disability have not been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2000 to December 2003, including in the Southwest Asia theater of operations. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2012 rating decision. In April 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the claims file. Effective Date 1. Entitlement to an effective date earlier than May 13, 2011, for the grant of service connection for PTSD 2. Entitlement to an effective date earlier than May 13, 2011, for the assignment of an increased 20 percent rating for a right shoulder disability The July 2012 rating decision granted service connection for PTSD and assigned an increased 20 percent rating for service-connected right shoulder third degree acromioclavicular separation, each effective May 13, 2011. The Veteran had previously claimed entitlement to service connection for both disabilities and believes that service connection for PTSD and a 20 percent rating for his right shoulder disability should be granted from the date following his separation from military service in December 2003. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on an original claim or a reopened claim will be the “[d]ate of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997) (requiring VA to consider the evidence of disability during the period one year prior to the application in order to determine when a factually ascertainable increase in disability occurred). The “date of the claim” means the date of the application based upon which benefits are awarded, not the original claim for service connection. Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff’d, 349 F.3d 1326 (Fed. Cir. 2003). In this context, it should be noted that the provisions of 38 U.S.C. § 5110 also refer to the date an application is received. While the term “application” is not defined in the statute, the regulations use the terms “claim” and “application” interchangeably, and they are 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), 3.155; Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. (38 U.S.C. § 5101(a)). 38 C.F.R. § 3.151. On December 12, 2005, the VA Records Management Center (RMC) in St. Louis, Missouri received a VA Form 21-526, Veteran’s Application for Compensation and/or Pension, from the Veteran. The same form was date-stamped as received by the Salt Lake City, Utah VA Regional Office (RO) on December 15, 2005. The Veteran responded, “No,” as to whether he had ever filed a claim with VA. He claimed entitlement to service connection for PTSD and a right shoulder disability among other claimed disabilities; however, his application was incomplete and not signed. He listed the address where he separated from service in Fort Bliss, Texas, as his address and his mother in Orland, California, as his closest relative. VA regulations define a substantially complete application as containing the claimant’s signature, among other requirements. 38 C.F.R. § 3.159(a)(3). If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information. Id. § 3.159(b)(2). In December 2005, several days after receiving the Veteran’s application for VA benefits, a veterans service representative (VSR) from the Salt Lake City RO emailed the Veteran, advising him that his claim had been received, but it was incomplete. The VSR indicated she had tried the phone numbers listed on his application and left a message with his mother. The VSR asked the Veteran to contact her so VA could obtain more information and begin processing his claim. A Report of Contact (VA Form 119) shows the Veteran contacted the VSR the same day. The VSR completed portions of the Veteran’s application with him over the phone. When asked for his current address, the Veteran provided his mother’s address in California, but indicated he lived in Hawaii and had his mail forwarded to him from California. The VSR explained the rules of jurisdiction for ROs and VA medical centers, and the Veteran provided his current address in Hawaii. The VSR advised the Veteran that his service treatment records, which had already been received, and his application would be forwarded to the Honolulu RO, and he would have the opportunity to submit additional evidence. The Veteran’s original VA Form 21-526 bearing the December 12, 2005 date stamp from the RMC and the December 15, 2005, date stamp from the Salt Lake City RO contains a third date-stamp from January 3, 2006. A January 4, 2006 Report of Contact shows the Veteran called the Salt Lake City VSR, stating that the Honolulu RO did not have any file for him yet. The VSR indicated she would send the information to the RO and asked the Veteran to resubmit his VA Form 21-526. He stated he “preferred to do it online.” The remainder of the Report of Contact recounts the VSR’s previous interaction with the Veteran in December 2005, indicates he had filed his claim within one year of his separation from service, notes that his service treatment records were transferred to the RMC in January 2004, and includes a request for the Honolulu RO to “establish a claim on this Vet, and if you haven’t received 526 [sic] yet, please initiate informal claim action.” The VSR forwarded the Report of Contact to the Honolulu RO, stating, “I know you don’t have the [claims] file. There isn’t one. Per [VA Form] 119 [Report of Contact], please create [claims] file and initiate informal claim for comp[ensation].” A date-stamp on the January 4, 2006 Report of Contact confirms that the Honolulu RO received it on January 31, 2006. Meanwhile, in a January 5, 2006 letter, the Honolulu RO advised the Veteran that his VA Form 21-526 had been received; however, it was incomplete and unsigned. Therefore, the RO was unable to take any action on his claim because VA requires an original signature on claims. The RO returned the original unsigned application to him and asked him to complete the highlighted areas and sign the application and return it in the envelope provided. In February 2006, the Honolulu RO wrote a follow-up letter to the Veteran, explaining the RO had received information that he had contacted the Salt Lake City RO about filing a disability claim and again asking him to complete and sign an enclosed VA Form 21-526. On April 6, 2006, the Honolulu RO received a new application for VA compensation benefits on a VA Form 21-526 from the Veteran that was signed (on March 25, 2006) and substantially complete with respect to his service connection claims for a right shoulder disability and PTSD. He listed his current address in Hawaii and again provided his mother’s address in California. (He only partially completed the section of the form in which he claimed entitlement to nonservice-connected pension benefits, but he returned that completed portion later in April 2006 upon request by the RO). VA also received the Veteran’s original VA Form 21-526 in which he listed his address as Fort Bliss, Texas. He signed the application on January 10, 2006. This application does not appear to include a date stamp as to when the RO received it in its signed, substantially complete form. An April 2007 rating decision denied the claims for service connection for a right shoulder disability, PTSD, and other claimed disabilities. In part, the decision explained that no service treatment records other than dental records were available to substantiate the claims, the Veteran had failed to report for scheduled VA examinations, and the evidence of record did not reflect that PTSD had been diagnosed. The Honolulu RO notified the Veteran of the decision the same month. Less than one week later, the Veteran contacted the RO, stating he had missed his original VA examinations and requested they be rescheduled. In August 2007, the Veteran presented for a VA examination and was diagnosed with PTSD. In September 2007, a VA examiner concluded the Veteran’s current right shoulder disability was related to military service. An August 2008 rating decision issued by the Honolulu RO granted service connection for a right shoulder disability and assigned a noncompensable rating, effective April 6, 2006, which is the date VA first received the signed, substantially complete application for VA benefits from the Veteran. The decision also denied the claim for service connection for PTSD. Although the Veteran’s complete service treatment records had been located and reviewed and the August 2007 VA examiner diagnosed PTSD, the August 2008 decision explained that the service department had been unable to verify his reported military stressor. In a separate letter the same month, the RO notified the Veteran of the decision and enclosed a copy of the rating decision, mailing them to the Veteran at his mother’s address in Orland, California. The correspondence mailed to the Veteran was not returned by the postal service to VA as undeliverable. VA received no further communications or evidence from the Veteran regarding his claims. He did not initiate an appeal of the decision by filing a notice of disagreement either with the denial of service connection for PTSD or with the initial rating assigned for a right shoulder disability, nor was new and material evidence received within the one-year appeal period following the notice of decision. Therefore, the August 2008 RO decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.201, 20.302, 20.1103. On May 13, 2011, VA received correspondence from the Veteran, acknowledging that there “was a rating made on 4-11-07. It obviously produced service-connected disabilities,” including a right shoulder disorder, which was “given a 0 [percent] rating.” He added, “Apparently, other disabilities were denied due to me failing to appear for examination.” He asked VA to reopen his service connection claim for PTSD and to “reopen the claim for an increased evaluation percentage of my [service-connected] right shoulder condition.” He listed his current address as the home belonging to his mother in Orland, California. Although the Veteran referenced the incorrect rating decision, and the RO had mailed the August 2008 notice of decision to his mother’s address rather than to his address in Hawaii, his May 2011 informal claim itself demonstrates his knowledge that VA had granted his claim for a right shoulder disability and denied the claim for PTSD. Notably, he asked VA to reopen the claim for PTSD and to increase the rating for his right shoulder disability. Moreover, the Veteran’s prior statement that he had arranged to have his mail sent to his mother’s home in California forwarded to him in Hawaii, and the fact that the August 2008 notice of decision was not returned by the postal service to VA as undeliverable, further supports the conclusion that he received notice of the August 2008 rating decision. Finally, during a January 2012 VA examination, he reported he had moved back to Orland, California four to five years earlier and had been living alone in the house his mother owned. In summary, the Board finds the facts outlined herein reflect the Veteran received the August 2008 notice of decision and was not harmed by the notice being mailed to his mother’s address in California rather than to his address of record in Hawaii. After appearing for VA examinations in January 2012 to evaluate his claims, the Lincoln, Nebraska RO, which processed the Veteran’s claims to assist the Oakland, California RO, granted service connection for PTSD and increased the disability rating for the right shoulder disability to 20 percent, each effective May 13, 2011. In his July 2012 notice of disagreement (NOD), the Veteran asserted he “started the claim in 2004” within a year of separation from service while he was living in Texas, and the claim was transferred to the Honolulu RO, where he believes the “claim material was lost or misplaced,” or mishandled. He asked VA to review and reconsider his claim for an earlier effective date. In February 2015, VA issued a statement of the case (SOC), which was mailed to the Veteran’s address of record at the home owned by his mother. In April 2015, he contacted VA, stating the RO had mailed the SOC to an incorrect address. He informed VA he now had a P.O. Box for his mailing address. In his substantive appeal received the next day, the Veteran reiterated his contentions that the Honolulu RO lost his original claim and service treatment records, that information in his service treatment records “would have shown PTSD [and] shoulder…conditions that have been granted,” and that he never received the August 2008 rating decision and notice of that decision. During the April 2019 hearing, the Veteran testified regarding his understanding of the chronology of his communications and claims filed for VA compensation benefits. He affirmed he had moved from Hawaii to California around the time that the 2008 rating decision and notice letter were issued. He expressed his belief that the only difference between the August 2008 rating decision and the July 2012 rating decision was a different RO re-evaluating him. He also believed an earlier effective date for service connection was warranted based on official service department records that existed but had not been associated with the claims file when VA first decided the claim pursuant to 38 C.F.R. § 3.156(c). The Veteran’s representative and the undersigned Veterans Law Judge (VLJ) explained that the August 2008 rating decision, in fact, reflects that VA did reconsider his claim after his service treatment records were associated with his claims file and granted service connection for the right shoulder disability effective April 6, 2006, which is the date VA received his claim. The undersigned VLJ also explained on the record that an earlier effective date may be warranted if the Veteran had initiated an appeal after the August 2008 RO decision, or if that decision did not become final, which was not the case here. Alternatively, the undersigned VLJ explained that the Veteran could file a motion to reverse or amend the final August 2008 RO decision based on an allegation of clear and unmistakable error (CUE), adding, however, that errors in the duty to assist never rise to the level of CUE. To date, VA has not received a motion to reverse or ament the August 2008 rating decision based on an allegation of CUE. Having considered the evidence of record, the Board finds that the currently assigned effective date of May 13, 2011 is the earliest effective date legally assignable for the award of service connection for PTSD and for the increased rating of 20 percent for the right shoulder disability. Here, the current effective date corresponds to the date VA received the Veteran’s application to reopen his service connection claim for PTSD and his increased rating claim for his right shoulder disability. The Board has carefully reviewed the record in its entirety and can identify no communication from the Veteran that may be a claim to reopen the previously denied claim of entitlement to service connection for PTSD or an increased rating for the right shoulder disability at any time since the last final rating decision in August 2008 and prior to May 13, 2011, the date the claim was received. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) (the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). Moreover, neither the Veteran nor his representative has identified any earlier claim. Accordingly, an effective date earlier than May 13, 2011, is not warranted for the award of service connection for PTSD or the increased rating assigned for the right shoulder disability. For clarity, the Board notes that on July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of in-service stressors involving “fear of hostile military or terrorist activity.” See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The amended regulation, 38 C.F.R. § 3.304(f)(3), indicates that if a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. When the Veteran submitted his May 2011 application to reopen his claim for service connection for PTSD, he benefited from the amended regulation because his lay statements were sufficient to establish the occurrence of his claimed stressor, while VA previously required credible supporting evidence such as service department records to verify the claimed stressor. Specifically, during his January 2012 VA examination, his reported military stressor related to fear of hostile military activity and the examining psychologist concluded the stressor supported the diagnosis of PTSD and his symptoms were related to that stressor. In turn, the July 2012 RO decision found the stressor was consistent with the places, types, and circumstances of his service. In summary, at the time of the August 2008 rating decision, VA required verification of claimed in-service stressors; the RO had been unable to verify the Veteran’s reported stressor; and the Veteran did not initiate an appeal of the August 2008 decision that denied service connection for PTSD. Accordingly, the proper effective date for the award of service connection for PTSD is May 13, 2011, which is the date VA received the application to reopen the previously denied claim. Regarding the increased 20 percent rating for the right shoulder disability, an effective date earlier than May 13, 2011, is not warranted because the Veteran did not file a claim for increase prior to that date, nor did he submit supporting medical evidence demonstrating that his right shoulder disability had increased in severity within the year prior to VA receiving his claim. 38 C.F.R. § 3.400(o)(2). Therefore, May 13, 2011, which is the date VA received the claim for an increased rating for a right shoulder disability, is the proper effective date for the increased disability rating based on VA examination findings in January 2012 that confirmed his right shoulder disability had increased in severity. The Board emphasizes that previous determinations that are final and binding will be accepted as correct in the absence of CUE. 38 C.F.R. § 3.105(a). The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002), that “[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” For the Veteran to be awarded an effective date based on an earlier claim, such as the signed and substantially complete claim received on April 6, 2006, he would have to show CUE in a prior denial or adjudication of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). However, neither the Veteran nor his representative has alleged CUE in the August 2008 prior rating decision. (Continued on the next page)   Finally, the Board points out for clarity that the August 2008 rating decision granted service connection for a right shoulder disability effective April 6, 2006, because that was the date the RO first received a signed, substantially complete application for VA benefits on a VA Form 21-526. Although the evidence of record documents VA’s receipt of a VA Form 21-526 by the RMC, then the Salt Lake City RO, and lastly the Honolulu RO prior to April 6, 2006, the application was not signed by the Veteran or substantially complete until VA received it on April 6, 2006. Accordingly, in the August 2008 rating decision that granted service connection for a right shoulder disability, the RO was precluded from assigning an effective date for that award earlier than April 6, 2006. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.