Citation Nr: 19119455 Decision Date: 03/19/19 Archive Date: 03/18/19 DOCKET NO. 16-15 211 DATE: March 19, 2019 ORDER Entitlement to an effective date earlier than August 26, 2013 for award of service connection for posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. The Veteran initially filed for service connection for PTSD in November 2010, was denied in a December 2011 rating decision, disagreed with the decision in February 2012, and provided no response to the February 2013 statement of the case until submitting a private medical opinion in July 2013. 2. The RO interpreted the July 2013 submission as a petition to reopen the claim of service connection. 3. The Veteran’s DD214 which identifies combat duty was not associated with the claims file previously and was associated with the record in December 2013. 4. In a July 2014 rating decision, the RO reopened the claim and awarded service connection for PTSD, identifying the Veteran’s DD214 in the evidentiary list. CONCLUSION OF LAW An effective date of November 1, 2010, but no earlier, for the award of service connection for PTSD, is warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(c)(1),(c)(3), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from June 1998 to October 1998 and on active duty from January 2003 to July 2003. Although the Board acknowledges that the Veteran’s January 2016 VA Form 9 hearing request has not yet been honored, this concern is rendered moot in light of the completely favorable outcome of the instant decision. Entitlement to an earlier effective date for PTSD The effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. §§ 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). 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 C.F.R. § 3.400(r), 3.400(q)(2); see Leonard v. Principi, 17 Vet. App. 447, 452 (2004). However, there is an exception to the general rule that the effective date of an award based on a request to reopen is the date VA receives the request to reopen. Service records submitted or received after a prior final denial can serve as a basis for providing an early effective date under 38 U.S.C. § 3.156(c). 38 C.F.R. § 3.156(c)(1) provides that, 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, notwithstanding paragraph (a) of the same section (which defines new and material evidence). Under 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. Under 38 C.F.R. § 3.156(c)(2), 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. See also Mayhue v. Shinseki, 24 Vet. App. 273 (2011); Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008). Under 38 C.F.R. § 3.156(c)(3), 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.” In this sense, the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits maybe granted.” Vigil, 22 Vet. App. at 66-67. The Veteran initially filed for service connection for PTSD in November 2010 and following the December 2011 denial, disagreed with the decision in February 2012. Thereafter, the RO failed to issue a statement of the case SOC until February 2013, more than a year after the December 2011 rating decision. The Veteran’s submission of a medical opinion in July 2013 did not mandate reconsideration of the issue and the RO instead interpreted the new evidence as an untimely response to the February 2013 SOC as it was received more than 60 days after the SOC. The matter proceeded as a petition to reopen the claim of service connection and in a July 2014 rating decision, the RO reopened the claim and awarded service connection for PTSD with an effective date of August 26, 2013. The Veteran disagreed with the decision, contending that his initial November 1, 2010, filing date was when entitlement actually arose. For the foregoing reasons, the Board agrees and entitlement to an earlier effective date for the award of PTSD is granted. In its December 2011 decision, the RO denied service connection for PTSD based on no current diagnosis. His treatment records from that timeframe showed symptoms similar to those associated with PTSD, and notations of subthreshold PTSD. Under 38 C.F.R. § 3.156(c), the December 2011 rating decision is not final due to relevant service personnel records being associated with the claims file afterwards, and an earlier effective date of November 1, 2010, is warranted for the award of service connection for PTSD. An earlier effective date is warranted pursuant to the provisions of 38 C.F.R. § 3.156(c), based on the receipt of additional service personnel records in December 2013, namely the Veteran’s DD214. This document identifies the claimant as combat Veteran of the Iraq war, a significant finding highly relevant to the stressor element of a PTSD claim. Although the DD214 was cited as evidence in the July 2014 award of entitlement, at the time of the December 2011 rating decision, it does not appear that this service record had not been secured and associated with the claims file. This is demonstrated by its absence in the evidentiary list of the December 2011 rating decision. The December 2011 rating decision should have been reconsidered as opposed to reopening the issue in July 2014. The prior rating decision for service connection for PTSD did not include a review of all the Veteran’s relevant service records. Under 38 C.F.R. § 3.156(c), these service records were a basis for reconsideration of the claims and a basis for granting of an earlier effective date. The RO granted the Veteran’s service connection for PTSD, in part, due to the combat notations in his DD214. Thus, new and material evidence was not necessary to reopen the original December 2011claim, and it should have been reviewed on the merits. The claims folder contains no other communication from the Veteran or his representative indicating intent to seek, or a belief in entitlement to, service connection for PTSD or any psychological condition between the time of his discharge from service until November 1, 2010, the date of his original claim. Thus, the proper date of claim is the date that the earliest claim for service connection for PTSD was received November 1, 2010. The Veteran has never disputed the fact that this was the earliest claim of record for service connection for PTSD. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Marcus J. Colicelli