Citation Nr: 21070445 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-07 370 DATE: November 24, 2021 ORDER An effective date prior to March 18, 2014 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. An unappealed January 2004 rating decision denied the Veteran's initial claim of service connection for depression and anxiety, and the Veteran was notified of the rating decision in January 2004. The January 2004 decision became final in January 2005. 2. An unappealed May 2010 rating decision denied the Veteran's initial claim of service connection for PTSD, and the Veteran was notified of the rating decision in May 2010. The May 2010 decision became final in May 2011. 3. The Veteran filed to reopen her service connection claim for PTSD in March 2014 and submitted new and material evidence to support her service connection claim. 4. A July 2014 rating decision granted service connection for PTSD, effective March 18, 2014, the date of the Veteran's petition to reopen the claim. 5. There is no pending, unadjudicated petition to reopen the service connection claim for depression, anxiety, or PTSD prior to March 18, 2014. CONCLUSION OF LAW The criteria for assignment of an effective date earlier than March 18, 2014, for the award of service connection for PTSD are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1977 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO), which, in relevant part, granted service connection for PTSD, rated 100 percent, effective March 18, 2014. In a July 2014 Notice of Disagreement, the Veteran argued for an earlier effective date for the award of service connection. Unfortunately, the Veteran died in June 2020, during the pendency of this appeal. The RO has recognized her adult son as the substitute claimant for the purpose of processing this claim to completion. See Deferred Rating Decision dated October 1, 2020; VA correspondence dated October 5, 2020. Procedural History In February 2019, the Board remanded the case for adjudication of inextricably intertwined claims of clear and unmistakable error (CUE) in prior rating decisions dated January 2004 and May 2010. In July 2021, the Board again remanded this case to ensure compliance with its February 2019 remand. In an August 2021 rating decision, the RO determined that the January 2004 and May 2010 rating decisions did not contain CUE and notified the appellant of its decision and his right to appeal. See Rating Decision dated August 26, 2021. Additionally, the RO readjudicated and denied the instant claim of entitlement to an earlier effective date for service connection of PTSD. See, e.g., Supplemental Statement of the Case dated August 26, 2021. The Board finds substantial compliance with its February 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). As the Board noted in its February 2019 remand, the July 2014 rating decision presently on appeal is not a final decision and therefore cannot be the subject of a claim of CUE. See 38 U.S.C. § 5109A(a); 38 C.F.R. § 3.105(a) (Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error). As such, the Board's decision herein appropriately addresses only the merits of the claim for entitlement to an earlier effective date for the grant of service connection for PTSD. Should the appellant appeal the August 2021 rating decision and be granted an earlier effective date for service connection for PTSD, the effective date would be corrected. As such, the appellant is not prejudiced by the Board's adjudication of the instant claim on the merits at this time. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Entitlement to an effective date prior to March 18, 2014 for the grant of service connection for PTSD. Generally, the effective date of an award of service connection is the date the claim was received, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The same is true for an award based on a claim reopened after final adjudication, as VA laws and regulations stipulate that the effective date of such an award shall be fixed in accordance with the facts found but shall not be earlier than the date the claim was received, or the date entitlement arose, whichever is later. See Id.; 38 C.F.R. § 3.400(r). The Veteran applied for service connection for depression and anxiety on September 9, 2003. In a January 2004 rating decision, the RO denied service connection and notified the Veteran by letter dated January 21, 2004. A claimant has one year from notification of the RO decision to initiate an appeal by filing a Notice of Disagreement, and the rating decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.302. The Veteran did not appeal the denial of service connection within one year of the January 2004 notification letter. Therefore, the rating decision became final in January 2005. On September 29, 2009, the Veteran applied for service connection for PTSD. In a May 2010 rating decision, the RO denied service connection and notified the Veteran by letter dated May 20, 2010. The Veteran did not appeal the denial of service connection within one year of the May 2010 notification letter. Therefore, the rating decision became final in May 2011. On March 18, 2014, the Veteran submitted a petition to reopen her claim for service connection for PTSD. In a July 2014 rating decision, the RO granted entitlement to service connection and notified the Veteran by letter dated July 24, 2014. The Veteran filed a timely NOD in July 2014, in which she requested an earlier effective date of service connection, and this appeal ensued. 38 U.S.C. § 7104(b); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1100. The Board has reviewed all relevant evidence and finds no basis under the law to award an effective date earlier than March 18, 2014 for the grant of service connection for PTSD. Based on the procedural history as outlined above, the January 2004 rating decision, of which the Veteran was notified in January 2004, and the May 2010 rating decision, of which the Veteran was notified in May 2010, became final decisions of record addressing service connection for PTSD. Subsequent to the May 2010 rating decision, the Veteran filed an application to reopen the claim on March 18, 2014. Significantly, the relevant regulation provides that any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application, here March 18, 2014. Additionally, no correspondence was received from the Veteran mentioning her PTSD and/or indicating an intent to apply for service connection for PTSD between the issuance of the May 2010 rating decision (the date of last final decision denying the claimed disability) and March 18, 2014 (the date of her petition to reopen a service connection claim for PTSD). The Board considered whether any evidence of record dated prior to March 18, 2014, may be construed as a claim, formal or informal, for service connection for PTSD. However, in this case, there is no document of record earlier than the established date of claim that may reasonably be construed as a formal or informal claim for PTSD, nor did the Veteran submit her claim within one year of her separation from service in 1980. See 38 C.F.R. §§ 3.151 (a), 3.155(a). Even if there were evidence of PTSD prior to the assigned effective date, the claim would still fail because the mere existence or even receipt of medical records does not establish that the Veteran filed a claim for service connection. Where a claimant has not previously been granted service connection, VA's receipt of medical records cannot be construed as an informal claim. Lalonde v. West, 12 Vet. App. 377, 382 (1999). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a veteran suffers from a disability does not establish intent on the part of the veteran to seek service connection for that disability. Brannon v. West, 12 Vet. App. 32, 34, 35 (1998). Further, the Federal Circuit Court has held that the mere mention of a condition in a medical record, alone, cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. §§ 3.155, 3.157. As set out above, the relevant regulation requires that a claim, or at least some application that reasonably viewed can be considered a claim, be filed. Here, with the exception of the September 2003 and September 2009 service connection claims, which were both adjudicated and denied without timely appeal by the Veteran, there was no such claim prior to the currently assigned effective date of March 18, 2014. The Board acknowledges, and is sympathetic to, the contention by the Veteran, and now the appellant, that an earlier effective date is warranted. However, under applicable law, the effective date for a grant of service connection following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As such, the RO has already assigned the earliest possible effective date for its grant of the reopened claim, which was correctly determined to be March 18, 2014, the date of receipt of the Veteran's application to reopen her claim. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Consequently, there is no legal basis at this juncture upon which to grant an effective date prior to March 18, 2014 for the grant of service connection for PTSD. The Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104(c). Accordingly, the claim of entitlement to an effective date earlier than March 18, 2014 for the award of service connection for PTSD must be denied. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.