Citation Nr: 21000418 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-01 813 DATE: January 5, 2021 ORDER Entitlement to an effective date prior to January 24, 2014, for the award of service connection for posttraumatic stress disorder (PTSD) with unspecified neurocognitive disorder is denied. FINDINGS OF FACT 1. A January 2011 rating decision continued to deny service connection for PTSD; the Veteran did not timely disagree with that decision or submit new and material evidence within the following year, and it became final. 2. Following the January 2011 rating decision, the first communication from the Veteran expressing intent to reopen a claim of service connection for PTSD was received on January 24, 2014. CONCLUSION OF LAW An effective date prior to January 24, 2014, for the award of service connection for PTSD with unspecified neurocognitive disorder is not warranted. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from July 1989 to November 1989, from December 1990 to May 1991, and from August 1991 to January 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 Department of Veterans Affairs (VA) rating decision, which inter alia granted service connection for PTSD with unspecified neurocognitive disorder, rated 100 percent, effective January 24, 2014. In March 2018, a videoconference hearing was held before the undersigned; a transcript is in the Veteran’s record. At the March 2018 Board hearing the Veteran raised the issue of clear and unmistakable error (CUE) in a February 2007 final rating decision (in that it denied service connection for PTSD). Accordingly, in May 2018, the Board remanded the instant claim as inextricably intertwined with the referred CUE claim. An August 2020 rating decision denied CUE in the February 2007 rating decision. The Veteran has not appealed that rating decision; and the CUE claim is not before the Board. Entitlement to an effective date prior to January 24, 2014 for the award of service connection for PTSD with unspecified neurocognitive disorder is denied. Legal Criteria and Factual Background As noted above, at the March 2018 Board hearing the Veteran raised the issue of CUE in a February 2007 final rating decision (in that it denied service connection for PTSD). He contends that an effective date of August 2006 (the date of his original claim seeking service connection for PTSD) is warranted. Governing law provides that when there is a final rating decision that denied a claim of service connection for the disability, the effective date of an award of service connection based on the claim being reopened may not be earlier than the date of receipt of the application to reopen. 38 U.S.C. § 5110; 38 C.F.R. § 3.400; see also Nelson v. Principi, 18 Vet. App. 407, 409 (2004). [An earlier effective date for an award of service connection following a final rating decision denial of service connection for the same disability may alternatively be established by establishing there was CUE in the prior decision. 38 C.F.R. § 3.105(a).] In August 2006, the Veteran filed a claim for “PTSD with short term memory loss.” A February 2007 rating decision denied service connection for PTSD as such was not shown to be related to military service. The decision explained that the Veteran failed to reply to a PTSD questionnaire seeking information regarding a vaguely reported stressor event, and that VA was unable to verify any claimed stressor in service. The Veteran did not timely disagree with that decision or submit new and material evidence within the following year, and it became final. 38 U.S.C. § 7105. In December 2008, the Veteran submitted a statement seeking to reopen a claim of mood disorder, PTSD, and memory loss due to “my service + combat.” A September 2009 rating decision continued denial of service connection for PTSD, finding the evidence was insufficient to confirm the Veteran engaged in combat or was a prisoner of war (POW), the service department was not able to corroborate the claimed stressor, and the criteria for a diagnosis of PTSD were not met on July 2009 VA mental disorders examination. In March 2010, the Veteran submitted a claim for PTSD (among other issues). A January 2011 rating decision declined to reopen the claim as the diagnostic criteria for PTSD were not met on June 2010 and December 2010 VA examinations. The Veteran did not timely disagree with that decision or submit new and material evidence within the following year, and it became final. 38 U.S.C. § 7105. In June 2012, VA received a private psychological evaluation report (dated May 2012). It was not accompanied by a claim form or any correspondence seeking to reopen a claim. On January 24, 2014, VA received a claim to reopen a claim of service connection for PTSD. A July 2014 rating decision granted service connection for PTSD with unspecified neurocognitive disorder, rated 100 percent, effective January 24, 2014. In an August 2014 Notice of Disagreement (NOD), the Veteran argued for an effective date “going back to 2006 when I first applied for PTSD.” At the March 2018 hearing, the Veteran’s representative noted that some of the Veteran’s service personnel records were not associated with the record. She argued that such records may show that the Veteran served in combat and thus support a claim of CUE in the February 2007 rating decision. She also asserted that the regulations for establishing service connection for PTSD were “relaxed” after the 2007 rating decision, and that had the relaxed standard been in place at that time, he might have been entitled to service connection at that time. Analysis The critical (and dispositive) question in this matter is when (after the January 2011 final rating decision) the Veteran first filed a claim to reopen a claim of service connection for PTSD. After the January 2011 rating decision, the first communication from the Veteran seeking service connection for PTSD was in a statement received on January 24, 2014; service connection has been awarded from that date. The January 2011 final rating decision is a legal bar to an award of service connection prior to the date of the claim to reopen. There is nothing in the record showing that he filed a claim to reopen prior to January 24, 2014. The Board acknowledges that VA received a private psychiatric examination report in June 2012; however, it was not accompanied by any claim or statement; thus, it was not a claim to reopen. [In determining whether an informal claim has been made, VA is not required to read the minds of the Veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999).] It was received more than one year after the January 2011 rating decision, so it cannot function as a timely NOD or new and material evidence with respect to the January 2011 rating decision. Finally, it was received more than a year prior to the January 24, 2014 claim to reopen; therefore, it cannot be deemed an intent to file a claim pursuant to 38 C.F.R. § 3.155. The Board acknowledges the Veteran’s argument that VA “relaxed” the regulations governing service connection for PTSD after the 2007 final rating decision, and had that regulation been in effect in 2007 his claim may have been then granted. The Board notes that on July 12, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amended 38 C.F.R. § 3.304(f) by re-designating paragraphs(f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and adding a new paragraph (f)(3) that states: If a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. Significantly, this regulation was in effect at the time of the January 2011 final rating decision, which declined to reopen the claim. [The evidence of record at the time of the February 2007 rating decision was also of record in January 2011.] The Veteran did not timely disagree with that decision or submit new and material evidence within the following year, and it became final. The Board also acknowledges the argument raised at the March 2018 hearing that some of the Veteran’s service personnel records were not associated with the record, and that such records may show that the Veteran served in combat and thus support a claim of CUE in the February 2007 rating decision. On remand, in December 2018, additional service personnel records were associated with the file. They include a 1997 U.S. Army Reserve discharge record, various enlistment/re-enlistment papers, DD-214, retirement points report, orders, promotion paperwork, and a report of separation and record of service from the National Guard Bureau (which notes he received medals including the Army Service Ribbon, the National Defense Service Medal, the Kuwait Liberation Medal, and Southwest Asia Service Medal with 3 bronze stars; none of the awards or decorations connote combat service.) As the records do not show combat service, the RO denied the claim of CUE in the February 2007 rating decision. See August 2020 rating decision. The Veteran has not appealed that decision. [Although not specifically argued, the Board has also considered the applicability of 38 C.F.R. § 3.156(c) but finds those provisions do not apply, as the award of service connection was not premised (even in part) on the newly associated service personnel records; as explained above, those records do not show combat service.] In summary, there is no legal authority for the assignment of an effective date prior to January 24, 2014, for the award of service connection for PTSD with unspecified neurocognitive disorder under the circumstances here presented. The law is dispositive; the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dupont, Counsel 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.