Citation Nr: 20004555 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-62 492 DATE: January 21, 2020 ORDER An effective date prior to January 21, 2015, for the award of service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. An April 2007 Board decision denied the Veteran’s service connection claim for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD). Although the Veteran was notified of the Board’s decision, he did not appeal, and neither the Veteran nor his representative filed a motion for reconsideration. 2. The Veteran filed a claim for service connection for an acquired psychiatric disability on January 21, 2015, and during the period on appeal from April 19, 2007 to January 20, 2015, the record contains no evidence of a formal or an informal claim for an acquired psychiatric disability. CONCLUSIONS OF LAW 1. The April 2007 Board decision is final. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1104. 2. The criteria for the assignment of an effective date earlier than January 21, 2015, for the award of service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400(b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the U.S. Air Force from June 1992 to June 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which awarded service connection for the Veteran’s acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), and awarded an evaluation of 70 percent, effective January 21, 2015. The Veteran testified before the undersigned at a hearing held in October 2019; a transcript of that hearing is of record. An April 2007 Board decision previously denied service connection for the Veteran’s PTSD, on the grounds that the record contained no corroborating evidence of an in-service incident or event qualifying as a PTSD stressor. Although the Veteran was notified of the Board’s decision, he did not appeal the decision to the United States Court of Appeals for Veterans Claims (the Court), nor did the Veteran or his representative file a motion for reconsideration. An effective date prior to January 21, 2015, for the award of service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), is denied. As stated above, a December 2015 rating decision granted service connection for the Veteran’s acquired psychiatric disability and awarded a 70 percent evaluation, effective January 21, 2015, the date the Veteran filed his service connection claim for PTSD due to military sexual trauma (MST). Despite the Board’s prior final denial in April 2007, the Veteran contends that his service-connected PTSD warrants an effective date prior to January 21, 2015. Board decisions from which an appeal is not perfected become final. See 38 U.S.C. §§ 5108, 7104; 38 C.F.R. §§ 20.1100, 20.1104. As stated above, an April 2007 Board decision denied service connection for the Veteran’s PTSD on the grounds that the record contained no corroborating evidence of an in-service incident or event qualifying as a PTSD stressor. Although the Veteran was notified of the Board’s decision, he did not appeal the decision to the Court, nor did the Veteran or his representative file a motion for reconsideration; accordingly, the April 2007 Board decision denying service connection for the Veteran’s PTSD became final in April 2007. See 38 U.S.C. §§ 7103, 7104(a), (b); 38 C.F.R. §§ 20.1100, 20.1104. Therefore, the April 2007 Board decision became final and the prior claim is no longer the appropriate point from which to determine the effective date of an award unless a claim for clear and unmistakable error (CUE) is submitted. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Subsequently, the Veteran filed a claim to reopen in 2010. This claim was denied in a May 2011 rating decision. While the Veteran filed a Notice of disagreement, a statement of the case was issued in June 2014 and the Veteran did not timely file a substantive appeal. Thus, the May 2011 rating decision became final and the 2010 claim is no longer the appropriate point from which to determine the effective date of an award unless a claim for clear and unmistakable error (CUE) is submitted. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). As stated above, the Veteran filed the instant PTSD claim on January 21, 2015; yet he contends that he is entitled to an earlier effective date on the grounds that he was diagnosed with PTSD as early as April 2003. However, as a previously denied claim may not be re-adjudicated absent the presentation of new and material evidence or of clear and unmistakable error (CUE), the Veteran’s claim for an earlier effective date must be denied. See Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); 38 U.S.C. §§ 7103(a), 7104(a), (b); 38 C.F.R. §§ 20.1403, 20.1404. The Board notes that, at the October 2019 hearing before the undersigned, the Veteran’s representative clarified that the Veteran does not assert any administrative error or a clear and unmistakable error on the part of VA. See 38 C.F.R. § 20.1404(b). Moreover, the effective date for the grant of service connection, in conjunction with a grant of entitlement to service connection, shall generally be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date the entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). When determining when the entitlement arose, an effective date for benefits can be no earlier than the date the disability at issue first manifested. See DeLisio v. Shinseki, 25 Vet. App. 45, 52 (2011). During the period on appeal in this case, VA has recognized both formal and informal claims, which, under certain requirements, may consist of a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. §§ 3.1(p), 3.157(b)(1) (in force prior to March 24, 2015). However, the mere presence of medical evidence of a disability does not establish intent on the part of the claimant to seek service connection for a disability, see Lalonde v. West, 12 Vet. App. 377, 382 (1999), and a medical examination report may only constitute an informal claim for an increased evaluation if service connection has already been established for the disability at issue. See MacPhee v Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006). In this case, because the Veteran’s service connection claim for an acquired psychiatric disability was received by VA on January 21, 2015, more than one year from his separation from service on June 21, 1996, the Veteran has been awarded an effective date of January 21, 2015, the date of his claim, which is the earliest effective date possible pursuant to law. See also 38 C.F.R. § § 3.400(b)(2)(i). (Continued on the next page)   Accordingly, in light of the foregoing, and given that the Veteran has been granted the earliest date allowable by law for the award of service connection for his acquired psychiatric disability, the Board finds that a preponderance of the evidence of record weighs against a finding that an effective date earlier than January 21, 2015, is warranted in this case; therefore, the benefit of the doubt doctrine does not apply, and the Veteran’s claim for an earlier effective date for his service-connected acquired psychiatric disability must be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.