Citation Nr: 20028092 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 18-44 422 DATE: April 22, 2020 ORDER Entitlement to an effective date prior to August 19, 2015, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. REFERRED ISSUE Whether there was clear and unmistakable error (CUE) in an August 1984 rating decision that denied the claim of entitlement to service connection for PTSD. FINDINGS OF FACT 1. The Veteran’s original claim for a psychiatric disorder was denied in a November 1970 decision; he did not appeal the RO's determination, nor was new and material evidence received within a year of the issuance of the rating decision. 2. The Veteran filed a claim to reopen service connection for a psychiatric disorder, to include PTSD, in February 1984. The claim was denied in an August 1984 rating decision; he did not appeal the RO's determination, nor was new and material evidence received within a year of the issuance of the rating decision. 3. On August 19, 2015, VA received the Veteran's informal claim for compensation and thereafter, on June 15, 2016, VA received the Veteran's fully developed claim requesting to reopen his claim for service connection for PTSD; there were no formal or informal claims received by VA prior to June 15, 2016. CONCLUSION OF LAW The criteria for an effective date prior to August 19, 2015, for the grant of entitlement to service connection for PTSD are not met. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. §§ 3.400, 20.200, 20.1103 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to August 1969. This appeal to the Board of Veterans' Appeals (Board) originated from a November 2016 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for PTSD, effective August 19, 2015. In his documents in support of his appeal for the earlier effective date issue, the Veteran appeared to be raising CUE in an August 1984 rating decision. See, e.g., August 2018 VA Form 9. Without using that specific language, the Veteran seemed to be contending that the August 1984 rating decision contained error by failing to properly consider a July 1984 VA examination report. The RO tangentially addressed this claim in a statement of the case as part of its adjudication of the earlier effective date claim, but the CUE claim requires its own adjudication, which has not yet occurred. Therefore, the Board is referring to the RO for proper action the CUE issue. The Board does not have jurisdiction to address it at this time. See Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006) 1. Entitlement to an effective date prior August 19, 2015, for the grant of service connection for PTSD. The Veteran seeks an effective date prior to August 19, 2015. In his VA Form 9 (substantive appeal), he asserted that the effective date should be concurrent with the date of a June 12, 1984, VA contract psychiatric examination which diagnosed PTSD. See VA Form 9. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(ii), (r). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). The Veteran initially submitted a claim for a “mental-nervous” condition in November 1969. This claim was subsequently denied in a March 1970 rating decision. The Veteran was notified of the March 1970 denial and of his appellate rights in an April 1970 letter. He did not appeal the RO's determination, nor was new and material evidence received within a year of the issuance of the rating decision. Thus, the March 1970 decision is final. See 38 U.S.C.§ 7105; 38 C.F.R. §§ 20.200, 20.1103. The Veteran filed to reopen his claim for a psychiatric disorder, claimed as PTSD, in February 1984. This claim was again denied in an August 1984 rating decision. Incidentally, at the time of the August 1984 decision, the RO expressly considered the June 1984 VA examination report which diagnosed PTSD. However, after also considering a July 1984 Certification of Correct Diagnosis from the Chief of Psychiatric Service, which instead diagnosed passive-aggressive personality with drug dependency and hallucinogens, the RO continued to deny the claim. The Veteran was notified of the August 1984 denial and of his appellate rights in a contemporaneous August 1984 letter. He did not appeal the RO's determination, nor was new and material evidence received within a year of the issuance of the rating decision. Thus, the February 1984 decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. On August 19, 2015, the Veteran submitted a VA Form 21-0966 (Intent to File a Claim for Compensation/Pension). Within one year of that submission, on June 15, 2016, the Veteran filed a formal claim to reopen the previously denied matter of entitlement to service connection for PTSD. Service connection for PTSD was granted in a November 2016 rating decision, with a 50 percent disability rating assigned effective August 19, 2015, the date the Veteran's informal claim was received. The Veteran now seeks an earlier effective date. Based upon a review of the evidence, and for reasons expressed immediately below, the Board finds that the currently assigned effective date of August 19, 2015, is the earliest effective date assignable for the award of service connection for PTSD. As noted above, the assignment of an effective date for service connection is essentially governed by the date of filing with VA of a claim. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Board has reviewed the record and can identify no communication from the Veteran that may be considered to be a claim of entitlement to service connection for a psychiatric disability to include PTSD following the final denial in August 1984 and prior to the date the informal claim to reopen was received (August 19, 2015). See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) (the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). The Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peak, 21 Vet. App. 537, 539-540 (2008) (citing Bingham v. Nicholson, 421 F. 3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d. 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995).) Here, the evidence clearly shows that the final disallowance, that is, the last disallowance determined to be a final decision by virtue of having not been appealed, is the August 1984 rating decision. The evidence also shows that the date of receipt of the Veteran's informal claim to reopen (with submission of a formal claim within one year) was August 19, 2015, and no sooner. Consequently, the only effective date for award of service connection that may be assigned for the Veteran's PTSD is the presently assigned date of August 19, 2015. The Board does not dispute that the Veteran experienced psychological symptoms prior to the assigned effective date; that he did was evidence that provided a basis for the grant of service connection. However, the Board is obligated to apply the law as Congress has created it. As explained above, the law does not support the assignment of an effective date prior to August 19, 2015, and the claim must be denied. As noted above, the Board is referring to the RO a CUE issue that has been reasonably raised when sympathetically reading the Veteran's statements. In sum, the Board does not find an effective date prior to August 19, 2015, is supported for the grant of service connection for PTSD. The preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not applicable; and an earlier effective date prior to August 19, 2015, for the grant of service connection for PTSD is therefore not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Hoeft 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.