Citation Nr: 21062779 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 20-16 868 DATE: October 12, 2021 ORDER Entitlement to an effective date prior to January 31, 2018 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. A February 2012 rating decision denied service connection for PTSD because the Veteran failed to report to the scheduled VA examination and the medical evidence did not show a mental disorder that was related to service. 2. The Veteran did not perfect an appeal to the February 2012 rating decision, and new and material evidence was not received within one year of the decision. 3. The evidence of record shows there was no pending, unadjudicated claim to reopen service connection for PTSD filed after the February 2012 rating decision and prior to January 31, 2018. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to January 31, 2018 for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1965 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that new evidence has been associated with the Veteran's claims file since the January 2020 statement of the case (SOC). Generally, the Board may not consider evidence not previously reviewed by the Agency of Original Jurisdiction (AOJ) unless a waiver of initial AOJ review is obtained from the veteran. 38 C.F.R. § 20.1304 (c); Disabled Am. Veterans v. Sec'y of Veterans Aff., 327 F.3d 1339 (Fed. Cir. 2003). However, if an appellant filed a substantive appeal on or after February 2, 2013, as occurred here, an automatic waiver of initial AOJ review is implied for new evidence submitted by the appellant or representative to the AOJ or the Board. 38 U.S.C. § 7105 (e). Because the Veteran filed his substantive appeal after February 2, 2013, and he has not specifically requested initial AOJ consideration of the evidence, such waiver is presumed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c). Entitlement to an effective date prior to January 31, 2018 for the grant of service connection for PTSD is denied. The Veteran disagrees with the effective date of January 31, 2018 assigned for service connection for PTSD. The Veteran contends that he experienced psychiatric symptoms since separation from service. The Veteran does not contend that he filed a claim to reopen service connection prior to January 31, 2018. An effective date for a reopened claim is the date of receipt of claim or date entitlement arose, whichever is later, except as provided in 38 C.F.R. § 20.1304(b)(1). 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (r), (q)(2). A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. See 38 C.F.R. §§ 3.1 (p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198 200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran's duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1 (p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). As to what constitutes a claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The term "claim" means a communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). The record shows that the Veteran filed an original claim for service connection for an acquired psychiatric disorder in May 2011. The claim was denied in a February 2012 rating decision and the Veteran timely filed a notice of disagreement. A July 2016 SOC was issued continuing the denial, but the Veteran did not perfect an appeal within 60 days of the SOC and new and material evidence was not received within one year of the decision. As a result, the February 2012 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52 (b), 20.1103. The Veteran filed a claim to reopen service connection for PTSD on January 31, 2018; and in a March 2018 rating decision the RO granted service connection for PTSD with major depressive disorder and alcohol abuse in remission and assigned a 100 percent disabling effective January 31, 2018, the date of claim to reopen. The Veteran filed a notice of disagreement in May 2018 for the assigned effective date for the grant of PTSD. An SOC was issued in January 2020 continuing the effective date of January 31, 2018. The Veteran filed a substantive appeal in March 2020. There was no pending, unadjudicated claim to reopen service connection for PTSD filed after the February 2012 final rating decision and prior to January 31, 2018, and the Veteran does not contend that he filed a claim to reopen service connection prior to January 31, 2018. As the undisputed facts show there was no claim to reopen service connection prior to January 31, 2018, there is no legal basis for an earlier effective date for service connection for PTSD. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2), (r). The Veteran reports that his psychiatric symptoms began during service upon his return from Vietnam and sought treatment for his symptoms since service, to include a formal diagnosis of PTSD in 2017 by his private physician. The later diagnosed PTSD has been found to be related to service; however, the fact that symptoms preceded the claim to reopen has no legal bearing on the determination of an effective date in this case because the claim to reopen service connection was not received until January 31, 2018. See April 2020 Medical Treatment Record from Dr. O.S. Under 38 C.F.R. § 3.400 (q)(2) and (r), the effective date for reopened claims is "the date of receipt of claim or date entitlement arose, whichever is later." See 38 C.F.R. § 3.400 (q)(2) and (r) (emphasis added). The date of the instant claim, January 31, 2018, follows the date entitlement arose based on symptoms that he was experiencing. The Board acknowledges the Veteran's argument that his PTSD claim should date back to the original denial. However, the U.S. Court of Appeals for Veterans Claims, in Sears v. Principi, 16 Vet. App. 244, 248 (2002), held in that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he would have to show clear and unmistakable error (CUE) in the prior denial of the claim. See Flash v. Brown, 8 Vet. App. 332, 340 (1995). See also Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that "no matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). Here, however, the Veteran has not alleged a CUE in the previous rating decision. For these reasons, the evidence of record shows that there is no basis under the law for establishing an earlier effective date for service connection for PTSD than January 31, 2018, the date of receipt of the claim to reopen service connection. As such, the Veteran is already in receipt of the earliest possible effective date, as a matter of law, as January 31, 2018 is the date of receipt of the Veteran's claim to reopen service connection for PTSD. See 38 C.F.R. § 3.400. Consequently, entitlement to an earlier effective date for PTSD is denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. Asfaw, Associate 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.