Citation Nr: 19132131 Decision Date: 04/24/19 Archive Date: 04/24/19 DOCKET NO. 16-09 014 DATE: April 24, 2019 ORDER Entitlement to an earlier effective date of May 11, 2012, but not earlier, for service connection for posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT 1. The Veteran filed a claim for service connection for a psychiatric disability in May 1980 and VA denied that claim in February 1981. That February 1981 rating decision is final. 2. The Veteran filed to reopen a claim for service connection for a psychiatric disability in September 1981. VA reopened and denied that claim in December 1981. This December 1981 rating decision is final. 3. The Veteran submitted an application for compensation and/or pension, essentially requesting a reopening of the previously denied claim for service connection for a psychiatric disability, in November 2005. VA reopened and denied this claim in July 2006. This July 2006 rating decision is final 4. The Veteran filed to reopen a claim for service connection for a psychiatric disability in May 2012 and VA reopened and denied the claim in September 2013. The September 2013 rating decision never became final. 5. A July 2014 rating decision reopened the claim for service connection for posttraumatic stress disorder (PTSD), and established service connection for a psychiatric disability prior to November 13, 2013. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of May 11, 2012, but not earlier, for service connection for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.816(c). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1965 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge in November 2018. A transcript of that hearing is of record. Entitlement to an earlier effective date for service connection for posttraumatic stress disorder (PTSD), prior to November 13, 2013 Generally, the effective date for service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date 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. For reopened claims, the effective date shall be the date of receipt of the claim to reopen or the date entitlement arose. 38 C.F.R. § 3.400(r). Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). A claim is considered abandoned when a claimant does not supply information requested by VA within one year of the request. 38 C.F.R. § 3.158. Where there is an abandoned claim, the Veteran must file a new claim and the effective date will not be earlier than the date of receipt of the new claim. 38 C.F.R. § 3.158(a). The Veteran filed a claim for service connection for a nervous condition in May 1980, roughly 12 years after separation from service. A February 1981 rating decision denied service connection for a nervous condition because the nervous condition was not shown in service medical records and was too remote to be considered service-connected. The Veteran was notified of the February 1981 decision and of his appellate rights. Subsequently, within a year of the February 1981 rating decision, the Veteran filed a claim for service connection for a posttraumatic stress neurosis in September 1981, roughly 12 years after separation from service. A December 1981 rating decision reopened and denied service connection posttraumatic stress neurosis because there were no objective signs of anxiety and, although the Veteran went to Vietnam, there was no apparent special stressor event. The Veteran was notified of the December 1981 decision and of his appellate rights, but did not initiate an appeal of those issues. There is no indication that new and material evidence was received within the one year following that decision that was pertinent to those claims. 38 C.F.R. § 3.156(b). Thus, that decision became final. 38 U.S.C. §§ 7104, 7105. Therefore, in the absence of clear and unmistakable error, an effective date in September 1981 is not warranted. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In November 2005, the Veteran filed to reopen the claim service connection for a posttraumatic stress neurosis. A July 2006 rating decision denied service connection for posttraumatic stress neurosis. The Veteran was notified of the July 2006 decision and of his appellate rights, but did not initiate an appeal. There is no indication that new and material evidence was received within the one year following that decision that was pertinent to those claims. 38 C.F.R. § 3.156(b). Thus, that decision became final. 38 U.S.C. §§ 7104, 7105. Therefore, in the absence of clear and unmistakable error, an effective date in November 2005 is not warranted. Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Veteran filed to reopen a claim service connection for posttraumatic stress disorder that was received by VA on May 11, 2012. A September 2013 rating decision denied service connection posttraumatic stress disorder as the Veteran's service medical records did not contain complaints, treatment or a diagnosis for PTSD and the Veteran failed to attend a schedule VA examination without good cause. Within a year of the September 2013 rating decision, in November 2013, the Veteran filed to reopen the claim for service connection for PTSD and to reschedule the VA examination for PTSD. A July 2014 rating decision established service connection for PTSD effect November 13, 2013, the date the Veteran filed to reopen the claim. The Board notes that the Veteran established service connection for PTSD prior to attending the rescheduled VA examination for PTSD. After the September 2013 denial of service connection, the Veteran submitted additional evidence for VA to consider. That evidence included outpatient treatment notes from a VA medical Center dated from July 2014 to July 2014. It is those new treatment records that served as the underlying basis for the grant of service connection for PTSD. The Veteran, through the representative, contends that he is entitled to an earlier effective date for service connection for posttraumatic stress disorder (PTSD), prior to November 13, 2013. The Veteran does not assert that any clear and unmistakable errors occurred in this case but rather that the VA failed in its duty to assist the Veteran. Specifically, the Veteran contends that the February 1981 rating decision was in error because it relied on an inadequate VA examination. The Veteran claims that the October 1980 VA examination used as a basis for the February 1981 rating decision failed to discuss the Veteran’s assertions that his symptoms had been present since return from Vietnam and included digestive issues. Further, the Veteran also believes that the December 1981 denial of service connection for PTSD was premised on the October 1980 VA examiner not having found a Vietnam related stressor. Because the Veteran claims that the October 1980 VA examination was inadequate, the Veteran claims that the December 1981 rating decision to also be in error. The Veteran further asserts that the July 2006 rating decision which denied service connection for PTSD is internally inconsistent and failed to discuss depression and PTSD diagnoses which were of record at the time of the decision. The Veteran also asserts that there is no evidence of record that the Veteran was requested to appear for VA examination prior to the September 2013 rating decision which denied service connection on that basis. In support of that argument, the Veteran notes that he attended all other VA examinations of record and he disputes the assertion that he needed to confirm his attendance for a VA examination in advance. The Veteran also notes that the July 2014 decision that finally granted the claim appears to have been based entirely on medical records and not a VA examination. That statement is used by the Veteran to assert that a VA examination was not needed prior to the September 2013 rating decision and, thus, his claim should have been granted then. The Veteran and his representative are asking that the Board find that the earliest denials of service connection, in February 1981 and December 1981, were not final because they were based on inadequate VA examinations that were not probative and the effective date for the grant of service connection for PTSD should be established earlier than November 13, 2013. The Veteran and representative make it clear that they are not asserting clear and unmistakable error in this case, but rather, are claiming that the VA, throughout this appeal, has had a failure in its duty to assist the Veteran. Having reviewed the evidence of record, the Board finds that May 11, 2012, is the earliest effective date legally assignable for service connection for PTSD. The Board emphasizes that previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The 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. Sears v. Principi, 16 Vet. App. 244 (2002). For the Veteran to be awarded an effective date based on an earlier claim, he would have to show CUE in a prior denial of the claim. Flash v. Brown, 8 Vet. App. 332 (1995). However, neither the Veteran nor representative has alleged CUE in any prior rating decision. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (breach of the duty to assist cannot form the basis for a CUE claim). In fact, during the September 2018 Board hearing, the representative acknowledged that the arguments were in reference to a failure in the duty to assist the Veteran and are not a claim of CUE. The rating decisions from February 1981, December 1981, and July 2006 are final. The Veteran was notified of those decision and his appeal rights and did not initiate a timely appeal. No new and material evidence was received within one year of the July 2006 decision. The Veteran cannot be awarded an effective date based on these earlier claims, in the absence of CUE. The Veteran does not allege CUE, thus an earlier effective date cannot be granted based on these rating decisions. The assignment of an effective date for service connection based on an original claim or a claim to reopen is essentially governed by the date of receipt of the claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, the current effective date corresponds to the date VA received the Veteran’s application to reopen the claim for service connection for PTSD. The Board has carefully reviewed the record in its entirety and can identify no communication, informal or formal, from the Veteran that may be a claim to reopen the previously denied claim of entitlement to service connection for a psychiatric disability at any time since the last final rating decision in July 2006, and prior to May 11, 2012. Servello v. Derwinski, 3 Vet. App. 196 (1992) (Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). Moreover, neither the Veteran nor representative has identified any earlier claim after the July 2006 decision. The Board finds that the September 2013 rating decision, which denied service connection due to failure by the Veteran to appear for a VA examination was never finalized as the Veteran submitted new and material evidence within one year of the notification of that decision. Accordingly, the Veteran is entitled to an effective date commensurate with the date of filing for the claim that was pending at the time of the September 2013 rating decision, which is May 11, 2012. Accordingly, an effective date of May 11, 2012, but not earlier, is warranted for the award of service connection for PTSD. The preponderance of the evidence is against the assignment of any earlier effective date. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mondesir, Associate Counsel