Citation Nr: 19129804 Decision Date: 04/17/19 Archive Date: 04/16/19 DOCKET NO. 17-40 974 DATE: April 17, 2019 ORDER Entitlement to an effective date prior to June 27, 2014 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran’s claim for service connection for PTSD was initially considered and denied in an April 1992 rating decision; he did not appeal that decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. Consequently, that April 1992 denial of this claim is a final and binding determination based on the evidence then of record. 2. The Veteran filed petitions to reopen this claim that were denied in May 2006 and May 2008 rating decisions; he again did not appeal and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period following those decisions. Therefore, those May 2006 and May 2008 denials of the petition to reopen this claim also are final and binding determinations based on the evidence then of record. 3. On June 27, 2014, the Veteran filed another petition to reopen this claim for service connection for PTSD. 4. A February 2015 rating decision granted his petition to reopen this clam, but then denied entitlement to service connection for PTSD on the underlying merits after a de novo review of the evidence. 5. In response the Veteran filed a timely Notice of Disagreement (NOD) with that February 2015 rating decision. 6. A subsequent January 2017 rating decision granted service connection for PTSD with an effective date of June 27, 2014, the date of receipt of his most recent petition to reopen this claim. CONCLUSION OF LAW The criteria for an effective date earlier than June 27, 2014, for the grant of service connection for PTSD are not met. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1981 to March 1992. This appeal is before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) – which granted the Veteran’s claim of entitlement to service connection for PTSD and assigned an effective date of June 27, 2014. He appealed for an earlier effective date. Entitlement to an effective date prior to June 27, 2014 for the grant of service connection for PTSD Except as otherwise provided, 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 on 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, 3.400(b)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(p). The date of receipt shall be the date on which a claim, information, or evidence was received by VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). In his January 2017 NOD, the Veteran contested the effective date assigned for the grant of service connection for his PTSD. He contends that he is entitled to an earlier effective date back to March 1992, when VA received his first claim for service connection for PTSD. In March 1992 the Veteran filed an application for VA compensation or pension, claiming entitlement to service connection for PTSD. In an April 1992 rating decision, however, the RO denied that initial claim – concluding that his PTSD had predated his military service as it was due to him growing up in Vietnam during the Vietnam war and was not aggravated during or by his service, meaning worsened beyond its natural progression. VA did not in the next year receive any communication from him or his representative contesting that decision (i.e., initiating an appeal of it) and, as such, that decision became final and binding based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103.   In December 2005 the Veteran filed a petition to reopen this claim. In a May 2006 rating decision, however, the RO denied the petition because he had not submitted any new or material evidence. 38 C.F.R. § 3.156. VA again did not receive any communication from him or his representative within the next year contesting that decision (i.e., initiating an appeal of it), so it also became a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. In January 2008, the Veteran filed another petition to reopen this claim, which the RO denied in a May 2008 rating decision, again because the Veteran had not submitted any new or material evidence. VA again did not receive an NOD from him or his representative within the next year to initiate an appeal of that decision, (see 38 C.F.R. § 20.201), therefore, it too became a final and binding determination based on the evidence then of record. Id. On June 27, 2014, the Veteran filed yet another request to reopen this claim. In a February 2015 rating decision, the RO reopened the claim, concluding there now was the required new and material evidence, but then denied the claim on its underlying merits after a de novo review of the evidence. The Veteran timely filed an NOD with that decision and later, in a January 2017 rating decision, was granted service connection for PTSD retroactively effective from June 27, 2014, the date of receipt of his most recent petition to reopen this claim. This appeal for an earlier effective date ensued with, as mentioned, him contending that the effective date should go back to receipt of his initial claim for PTSD in 1992. There is no disputing the Veteran filed his initial claim for service connection for PTSD in March 1992 (the month he was discharged from service), but he did not appeal the initial April 1992 decision denying his claim. He also did not appeal the subsequent May 2006 and May 2008 decisions denying his petition to reopen this claim. This is critical because the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) 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." In order for the Veteran to be awarded an effective date based on an earlier claim, he has to collaterally attack and show clear and unmistakable error (CUE) in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). When such a freestanding claim for an earlier effective date is raised, the Court has held that such an appeal should be dismissed. But the dismissal should be without prejudice to refiling. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006). There is no allegation of CUE from the Veteran. He simply has stated that he is a military civilian and was working overseas during the times his claim was earlier adjudicated and failed to update his address with VA. There is a presumption of administrative regularity that public officers have properly discharged their official duties in absence of clear evidence to the contrary. See Ashley v. Derwinski, 2 Vet. App. 62 (1992); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (regarding the applicability of the presumption of administrative regularity to RO actions). Rebutting the presumption of administrative regularity usually requires more than a mere allegation of defective process or procedure, nonreceipt of a communication, or other failing, etc. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994); Schoolman v. West, 12 Vet. App. 307, 310 (1999). Notification for VA purposes is a written notice sent to the claimant's last address of record. See 38 C.F.R. § 3.1(q). Moreover, this presumption of administrative regularity does not diminish the claimant's responsibility to keep VA informed of changes of address and, if he does not, VA is not obligated to turn up heaven and earth to find him. See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). But this presumption also as mentioned is rebuttable, notably as an example when there is clear evidence of nondelivery (as confirmed by the U.S. Postal Service returning the mail as undeliverable) and if there is another address on file at which the appellant perhaps could be located. There was no such alternative address in this instance.   The representative argues that the Veteran had a confirmed diagnosis of PTSD while in service, but was initially denied benefits regardless, and since the evidence and stressors remained the same between the 1992 denial and the 2017 grant of service connection for PTSD, the earlier effective date (date of earlier filing of this same claim) should be preserved. This argument is misplaced, however, since 38 C.F.R. § 3.304(f)(1) recognizing a diagnosis of PTSD during service did not exist at the time of the initial adjudication of the claim in 1992. Moreover, the date of treatment or even diagnosis does not govern the effective date of a service-connection claim, instead, the date of receipt of the claim, and the date of receipt means the date VA received the claim. 38 C.F.R. § 3.1(r). The Court (CAVC) has explained that, in an original claim for service connection, the date entitlement arose is governed by the date the claim is received, not the date of the medical evidence submitted to support the claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). After the prior, final and binding, denials of the claim or petitions to reopen the claim in years past, the next communication from the Veteran indicating an intent to re-apply for benefits for PTSD was his most recent petition to reopen the claim, which VA received on June 27, 2014. So that date is the correct effective date of the eventual award since, to reiterate, where a prior unappealed decision becomes final and binding on a Veteran, the effective date of a subsequent award of service   connection is the date of receipt of the reopened claim (here, the date of receipt of the most recent petition to reopen the claim), not the date of receipt of the original claim. Melton v. West, 13 Vet. App. 442 (2000). See also 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i), (r), (q)(1)(ii). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K Pak, Associate Counsel