Citation Nr: 21066648 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-22 311 DATE: November 1, 2021 ORDER Entitlement to an effective date earlier than February 25, 2013, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran did not file a formal or informal claim for service connection for PTSD prior to the receipt of his February 25, 2014 original claim. CONCLUSION OF LAW The criteria for an effective date earlier than February 25, 2013, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1969 to April 1971, including service in the Republic of Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2014 and April 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in November 2017. This matter was previously remanded in August 2019 and January 2021 by the Board for additional development. In January 2021, the Board granted service connection for a psychiatric disability, other than PTSD, throughout the entire appeal period. The Board also found a remand was necessary to obtain a retrospective medical opinion to determine the date of onset of the Veteran's PTSD, in light of the September 2019 VA psychiatric examination that corroborates the Veteran's PTSD stressors and the Veteran's history of psychiatric treatment. See January 2021 BVA Decision. Entitlement to an effective date earlier than February 25, 2013, for the grant of service connection for posttraumatic stress disorder (PTSD) Generally, the effective date of an award of disability compensation based on a reopened claim after a final adjudication or disallowance is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless specifically provided, the effective date will be assigned based on the facts as found. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(a). The Veteran seeks an effective date earlier than February 25, 2013, for the award of service connection for PTSD. The VA initially received Veteran's claim for entitlement to service connection for PTSD on February 25, 2014. Service connection was denied in a July 2014 rating decision. The claim was remanded by the Board in an August 2019 decision to obtain VA treatment records and to afford the Veteran another VA examination. Service connection was granted for PTSD in a June 2020 rating decision, with an evaluation of 10 percent, effective September 26, 2019, the date of the VA examination showing a diagnosis of PTSD. Following the Board's January 2021 remand, a January 2021 rating decision reflected the Board's service connection grant for a psychiatric disability other than PTSD. Service connection for adjustment disorder NOS, major depressive disorder, generalized anxiety disorder and agoraphobia was granted with a 30 percent evaluation from February 25, 2013. A 50 percent evaluation was assigned from November 13, 2017 and a 30 percent evaluation for PTSD was granted from September 26, 2019. See January 2021 Rating Decision. Following a request for higher level review in March 2021, the Veteran was granted an increased rating from 30 percent to 50 percent for his service-connected PTSD, effective September 26, 2019. See May 2021 Rating Decision. The Veteran was afforded a VA examination for PTSD and corresponding VA medical opinion in May 2021. The VA examiner opined the Veteran's lay reports of his experiences in combat service while in Vietnam and his recurring mental health symptoms since that time meet full DSM-V criteria for PTSD and it is at least as likely as not that Veteran's PTSD began during service in Vietnam and has been an ongoing concern since that time. See May 2021 C&P Exam. Subsequently, in the June 2021 Supplemental Statement of the Case, the Veteran granted an earlier effective date for service-connected PTSD and a new effective date of February 25, 2013 was assigned. There was no evidence of Veteran filed a claim for a mental health disability prior to February 25, 2014, and in accordance with Public Law (PL) 112-154 Section 506, an effective date one year prior to the date of claim can be assigned. An application for VA compensation must generally be a specific claim in the form prescribed by the VA Secretary (i.e., VA Form 21-526). 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). However, prior to March 24, 2015, a claim could be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p). But see 38 C.F.R. § 3.1(p) (now providing that a "claim" must be submitted on an application form prescribed by the Secretary); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). As noted above, VA received the Veteran's initial claim for service connection on February 25, 2014. The Board notes the claims file does not contain any correspondence prior to February 25, 2014 which could be construed as a formal or informal claim of entitlement to service connection for PTSD. In VAOPGCPREC 26-97 (July 16, 1997), the General Counsel held that the addition of Diagnostic Code 9411, recognizing PTSD as a diagnostic entity, to VA's Schedule for Rating Mental Disorders under 38 C.F.R. § 4.132, effective April 11, 1980, was a liberalizing issue for purposes of 38 C.F.R. § 3.114 (effective date of an award pursuant to a liberalizing issue). Although VAOPGCPREC 26-97 concluded that the addition of PTSD to the Rating Schedule in 1980 is considered a liberalizing law for the purposes of 38 C.F.R. § 3.114, it does not authorize a retroactive award for every grant of service connection for PTSD. The effective date of an award made pursuant to a liberalizing act shall be fixed in accordance with the facts found. Entitlement to an earlier effective date is not warranted unless the veteran met all the eligibility criteria for PTSD on the effective date of the liberalizing law and such eligibility existed continuously from that date to the date of claim. Thus, while the addition of DC 9411 for PTSD may be considered a liberalizing issuance, a retroactive effective date cannot be assigned unless the evidence establishes that the veteran developed PTSD as of April 11, 1980, and that the disability continued up to the date that the claim for compensation was filed, in this case, February 25, 2014. See 38 C.F.R. § 3.114(a); VAOPGCPREC 26-97. Regarding how much earlier the effective date can be, the regulations provide: (1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. (2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. Additionally, pursuant to Ortiz v. McDonough, No. 2020-1911, the United States Court of Appeals for Veterans Claims (Court) recently held that the enactment of 38 C.F.R. § 3.304(f)(3) - which, in claims of service connection for posttraumatic stress disorder (PTSD), allows a claimed in-service stressor related to the veteran's fear of hostile military or terrorist activity to be established by the veteran's lay testimony alone - qualifies as a liberalizing law that triggers the effective date provisions of 38 C.F.R § 3.114(a). Upon review, the Board finds the evidence of record indicates that the Veteran met the eligibility criteria for service connection for PTSD on April 11, 1980. A review of the record shows that the Veteran has been experiencing PTSD symptoms since his period of service in Vietnam in the early 1970s. Significantly, the Veteran reported suffering from PTSD stressors during Vietnam including recurrent ambushes, including rocket attacks, combat, seeing dead bodies and experiencing nightmares. The VA examiner concluded that it is more likely than not, more than 50 percent probability that the Veteran's symptoms started in the military, were existent during his time in Vietnam, and existed since then. The evidence of record indicates that Veteran's PTSD predated April 11, 1980, the date of the applicable liberalizing law. However, because the initial claim for PTSD was filed more than 1 year after April 11, 1980, benefits could only be authorized for a period of 1 year prior to the date of receipt of the claim, i.e., February 25, 2013. 38 C.F.R. § 3.114 (a)(3). Therefore, as the earliest effective date permitted by law is February 25, 2013, the date the VA received the initial claim for service connection for PTSD, the appeal for an earlier effective date must be denied. As the preponderance of the evidence is against the claim for an effective date earlier than February 25, 2013, for the award of service connection for Veteran's PTSD disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.