Citation Nr: 21003968 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 19-20 728 DATE: January 25, 2021 ORDER Entitlement to an effective date prior to April 11, 2017, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an initial disability rating in excess of 70 percent for PTSD is remanded. INTRODUCTION The Veteran had active service from December 1997 to January 2000. In November 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran’s initial claim of entitlement to service connection for PTSD was denied in an April 2013 rating decision; he did not appeal that decision, and as such, the decision is considered final. 2. The Veteran initiated a claim to reopen the previously denied claim for service connection for PTSD, which was received on April 11, 2017, more than one year following his previous denial. CONCLUSION OF LAW The criteria for an effective date earlier than April 11, 2017, for service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As explained below, the pertinent facts in this case are not in dispute, and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim decided herein, and no further action is required to comply with VA’s duties to notify and assist under 38 U.S.C. §§ 5103, 5103A (2012) or 38 C.F.R. § 3.159 (2020). See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). Legal Criteria Generally, the effective date of an award of disability compensation based on a reopened claim for service connection will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Factual Background and Analysis The record shows the Veteran submitted an initial claim for service connection for PTSD on February 22, 2011. An April 2013 rating decision denied service connection, as the evidence failed to establish the claimed disability was incurred in service. Of note, at the time of the Veteran’s initial claim he reported stressors that included witnessing the death of fellow soldiers. The RO determined these reported stressors could not be verified. More importantly, the Veteran was notified of that decision in April 2013, and did not appeal that decision. As such, the decision became final. The Veteran subsequently filed a claim to reopen his claim for service connection for PTSD on April 11, 2017. By way of a July 2017 rating decision service connection for PTSD was established effective April 11, 2017, which was the date the Veteran submitted his claim to reopen. The Veteran has expressed disagreement with the assigned effective date. In sum, the Veteran has asserted he was not provided the evidence of his court martial. However, as noted above the Veteran’s initial claim for PTSD did not have any basis in his court martial or military sexual trauma reports, but instead focused on stressors associated with the death of three fellow service members. Irrespective, as noted above, the law clearly indicates the effective date of an award of disability compensation based on a reopened claim for service connection will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As such, the Veteran’s claim must be denied because the Veteran’s appeal lacks legal merit. In this respect, the Board is certainly sympathetic to the difficult experiences the Veteran has endured. However, the Board is bound by the law and is without authority to grant benefits on any other basis. See 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board further observes that “no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress.” Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)]. In this case, the Veteran failed to timely appeal his April 2013 denial of service connection for PTSD within the applicable appeal period. As such, his claim became final. Therefore, the earliest possible effective date for the grant of service connection for the Veteran’s PTSD is the assigned effective date of April 11, 2017. Accordingly, the claim must be denied. REASONS FOR REMAND Next, the Board notes that during his November 2020 hearing the Veteran asserted his PTSD is worse than currently evaluated. The Veteran most recently underwent a VA examination to assess the severity of his disability in June 2017. As there is evidence of a worsening of the disability the claim must be remanded for an examination to determine the current severity of the disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, these matters are REMANDED for the following actions: Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected PTSD. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.