Citation Nr: 20007614 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 17-36 892 DATE: January 30, 2020 ORDER An effective date of February 8, 2013, but no earlier, for the award of service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT VA received the Veteran’s petition to reopen his claim for service connection for PTSD on February 8, 2013, which was after the date entitlement to service connection arose. CONCLUSION OF LAW The criteria for an effective date of February 8, 2013, but no earlier, for the award of service connection for PTSD are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114(a), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to December 1969. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2016 decision of a VA Regional Office (RO) that granted service connection for PTSD effective April 18, 2016. The Veteran participated in a hearing before the undersigned in November 2019, and a transcript of this hearing has been associated with the record. Generally, the effective date of an award of disability compensation is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). The “date entitlement arose” has been interpreted to mean the date when the claimant met the requirements for the benefits sought; this is determined on a “facts found” basis. 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). When service connection is granted based on a claim that has been finally denied and subsequently reopened by the submission of new and material evidence, the effective date is the date of VA receipt of the new claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q), (r); Sears v. Principi, 16 Vet. App. 244 (2002), aff’d 349 F3d 1225 (2003). A “claim” or “application” is 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). An informal claim is any communication indicating intent to apply for one or more benefits. An informal claim must also be in writing. Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); see also Szemraj v. Principi, 357 F.3d 1370 (2004) (defining when the “identification” requirement of 38 C.F.R. § 3.155(a) is met). VA is required to look to all communications from the appellant, which may be interpreted as applications or claims, formal and informal, for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196 (1992). The date of receipt is the date when a claim, information or evidence was received at VA. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1(r). Turning to the facts in this case, in October 2002, the Veteran filed a claim for service connection for PTSD, and in February 2003, the RO issued a rating decision denying the Veteran’s claim. In September 2003, the Veteran timely disagreed with this rating decision, and the RO issued a statement of the case (SOC) addressing this issue in February 2004. The February 2004 SOC informed the Veteran that he had 60 days from the date of the letter or the remainder of the one-year period from the date of the February 2003 rating decision to perfect an appeal to the Board. In July 2005, a date outside of this specified time limit, the Veteran filed a substantive appeal on VA Form 9. The Veteran’s communication did not refer at all to the Veteran’s claim for service connection for PTSD, but it instead referenced the Veteran’s skin rash. VA next received a communication from the Veteran regarding PTSD on February 4, 2013, when the Veteran claimed that the February 2003 denial of service connection for PTSD contained clear and unmistakable error (CUE). He argued that it was CUE for the February 2003 rating decision not to have considered a list that he provided in September 2003 of the names of soldiers from his company who had been killed in action. Even absent a finding of CUE in the February 2003 decision, he stated he wished to reopen his claim of entitlement to service connection for PTSD. In June 2014, the RO issued a rating decision finding that revision of the February 2003 rating decision on the basis of CUE was unwarranted. The RO’s rating decision did not, however, address the Veteran’s petition to reopen his claim for service connection for PTSD. In July 2014, the Veteran again requested that VA reopen his claim for service connection for PTSD. On April 18, 2016, the Veteran underwent a VA examination, at which time the examiner diagnosed the Veteran with PTSD as a result on his in-service experiences. In a June 2016 rating decision, the RO granted service connection for PTSD and assigned an effective date of April 18, 2016, which was the date of the VA examination diagnosing the Veteran with PTSD. In July 2016, the Veteran disagreed with this decision, arguing that the effective date for service connection should be February 19, 2003, the date of the original rating decision denying his claim for service connection. Turning to an analysis of these facts, the Board will first determine the date of claim for service connection for PTSD. It is undisputed that the Veteran filed a claim for service connection for PTSD as early as October 2002, and the Board acknowledges that the Veteran believes that the effective date for the award of service connection for PTSD should be as early as this date of claim. A February 2003 rating decision denied the Veteran’s October 2002 claim. While the Veteran timely disagreed with this decision, the Veteran did not submit a timely substantive appeal following the issuance of an SOC in February 2004. 38 U.S.C. §§ 7104, 7105 (2012). The February 2003 rating decision thus became final. Following this final denial of the Veteran’s claim, the Veteran next submitted a statement seeking service connection for PTSD, including on the basis of a finding of CUE in the February 2003 rating decision, on February 8, 2013. The RO issued a rating decision in June 2014, finding that revision on the February 2003 rating decision on the basis of CUE was unwarranted. The RO did not, however, adjudicate the Veteran’s February 8, 2013, petition to reopen his claim of service connection for PTSD. The Veteran’s February 8, 2013, petition to reopen his claim for service connection for PTSD thus remained unaddressed and pending, and the Board treats February 8, 2013, as the date of claim for service connection for PTSD. Having established the date of claim as February 8, 2013, the appropriate effective date for the award of service connection is the later of the date of receipt of claim or the date entitlement to benefits arose. 38 U.S.C. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). In this case, affording the Veteran with the benefit of the doubt, and with clinicians diagnosing the Veteran with PTSD before his February 8, 2013, date of claim, the Board finds that the Veteran’s entitlement to service connection for PTSD arose before his February 8, 2013, date of claim. Thus, February 8, 2013, the later of the Veteran’s date of claim and the date when his entitlement to benefits arose, is the proper date for the award of service connection for PTSD. In making this determination, the Board acknowledges the Veteran’s belief that an effective date before February 8, 2013, is warranted. However, the Board is bound by the law, and it does not have the authority to grant the Veteran relief on an equitable basis. See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). In this case, given the finality of the February 2003 rating decision, there is no legal basis upon which to assign an effective date earlier than February 8, 2013, which is the date when VA received the Veteran’s petition to reopen his claim. See 38 C.F.R. § 3.400(r). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn 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.