Citation Nr: 21067832 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-10 887 DATE: November 5, 2021 ORDER An effective date of February 19, 1997, for the award of service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. On February 19, 1997, VA received the Veteran's VA Form 21-526 which included a claim for service connection for PTSD. 2. New and material evidence was constructively received within one year of the June 1997 rating decision; thus, it did not become final. CONCLUSION OF LAW The criteria for entitlement to an effective date of February 19, 1997, for the award of service connection for PTSD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114, 3.151, 3.155, 3.156(b), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1989 to December 1990. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2021. Entitlement to an effective date prior to September 13, 2013, for the award of service connection for PTSD. The Veteran contends she is entitled to an effective date prior to September 13, 2013, for the award of service connection for PTSD. See August 2021, Hearing transcript. Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, section 3.156(b) provides that new and material evidence received by VA prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. The United States Court of Appeals for Veterans Claims (Court) has consistently held that section 3.156(b) requires VA to determine whether evidence submitted within one year after the issuance of a rating decision constitutes new and material evidence relating to an earlier claim. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242 (2010). Until such a determination is made, the claim does not become final. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014) (holding that a claim remains pending where VA failed to fulfill a statutory duty to determine the character of newly submitted evidence). Here, new and material evidence was constructively before VA and thus the June 1997 rating decision never became final. The United States Court of Appeals for the Federal Circuit has rejected the notion that the VA adjudicator must have actual knowledge of the evidence and, applying the constructive receipt principle to the appellant's case, concluded that his "post-decision medical records were constructively received by the VA adjudicator prior to expiration of the [1]-year appeal period. Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). For purposes of § 3.156(b), the Federal Circuit held that "records received in the post-decision context must be evaluated under the same framework applied to records generated prior to a decision." Id. The Board reiterates that the Federal Circuit rejected the notion that the VA adjudicator must have actual knowledge of the evidence and, applying the constructive receipt principle to the appellant's case, concluded that his "post-decision medical records were constructively received by the VA adjudicator prior to expiration of the [one]-year appeal period." Id. Here, the Veteran separated from active duty in December 1990 due to mental conditions. See Form DD-214. The Veteran originally sought service connection for PTSD by a claim received on February 19, 1997. This claim was denied in a June 1997 rating decision. Within one year of the rating decision, the Veteran filed a notice of disagreement (NOD) stating she has been receiving ongoing treatment for PTSD at the VAMC in Cincinnati, Ohio. See September 1997, NOD. VA issued a statement of the case in September 1997. On September 13, 2013, however, VA received the Veteran's claim to reopen entitlement to service connection for PTSD in which the Veteran again stated that she has been receiving mental health treatment from the VAMC in Cincinnati, Ohio. In February 2015, prior to the issuance of the rating decision on appeal, VA obtained the VAMC Cincinnati records which reflected long-standing psychiatric symptoms and a diagnosis of PTSD related to the Veteran's military sexual trauma. See March 1997, VA treatment record. Without deciding whether the Veteran submitted new and material evidence within one year of the June 1997 rating decision, the February 2015 rating decision granted service connection for PTSD based, in part, on the VAMC Cincinnati treatment records, and assigned an effective date of September 13, 2013. In light of the evidence of record, the Board finds an earlier effective date of February 19, 1997, is warranted for the award of service connection for PTSD. The Veteran's September 1997 NOD identified VA-generated medical records from the Cincinnati, Ohio facility that were reasonably expected to be a part of her PTSD claim. Thus, in accordance with Lang, the VAMC Cincinnati records were constructively received by VA within one year of the June 1997 rating decision. Prior to the February 2015 rating decision, there is no evidence in the claims file to support a finding that the RO took any action to either determine whether the constructively received records constituted "new and material" evidence or readjudicate the Veteran's service connection claim for PTSD. Thus, the June 1997 rating decision did not become final. See Beraud, 766 F.3d at 1406-07. As the June 1997 rating decision did not become final and the medical records support finding the Veteran had PTSD at the time she filed her initial service connection claim, the appropriate effective date for the grant of service connection for PTSD was February 19, 1997, the date the initial claim for PTSD was received. See 38 C.F.R. § 3.400. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.