Citation Nr: 21072041 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 13-00 563 DATE: December 2, 2021 ORDER The May 5, 2017, decision of the Board of Veterans' Appeals (Board) denying a claim for an effective date before August 10, 2009, for the award of service connection for posttraumatic stress disorder (PTSD) is vacated in its entirety. An effective date before August 10, 2009, for the award of service connection for PTSD is denied. FINDINGS OF FACT 1. A May 5, 2017, decision of the Board denying the claim for an effective date before August 10, 2009, for the award of service connection for PTSD contained error that denied the Veteran the due process of law. 2. VA received the Veteran's claim for service connection for PTSD on August 10, 2009, which was after the date entitlement to service connection arose. CONCLUSIONS OF LAW 1. The criteria for vacatur of the May 5, 2017, decision of the Board denying the claim for an effective date before August 10, 2009, for the award of service connection for PTSD have been met. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 2. The criteria for an effective date before August 10, 2009, for the award of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114(a), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1967 to March 1969, including service in the Republic of Vietnam (Vietnam) during the Vietnam War. This matter initially came before the Board on appeal from a December 2009 decision of the Agency of Original Jurisdiction (AOJ) that granted service connection for PTSD with an effective date of August 10, 2009. The Veteran appealed this determination to the Board, which, in May 2017, denied the claim for an earlier effective date for PTSD. In June 2019, the Veteran's representative, alleging due process violations, moved to vacate the May 2017 decision of the Board. The Veteran participated in a hearing before the undersigned Veterans Law Judge in October 2016, and a transcript of this hearing has been associated with the record. Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his representative, or on the Board's own motion, when an appellant has been denied due process of law. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. In May 2017, the Board denied the Veteran's claim for an effective date before August 10, 2009, for the award of service connection for PTSD. In June 2019, the Veteran's representative moved to vacate the Board's May 2017 decision, claiming that the Board's decision denied the Veteran due process of law. Affording the Veteran with the benefit of the doubt, the Board finds that its May 2017 decision failed to adequately address all of the theories of entitlement to an earlier effective date for service connection for PTSD. The Board's May 2017 decision denying the claim for an effective date before August 10, 2009, for the award of service connection for PTSD thus contained error that impeded due process. Accordingly, the May 5, 2017, decision of the Board denying the claim for an effective date before August 10, 2009, for the award of service connection for PTSD is vacated in its entirety. Earlier Effective Date for Service Connection The Veteran argues that an effective date before August 10, 2009, for the award of service connection for PTSD is warranted. Generally, the effective date of an award of disability compensation is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). The "date entitlement arose" has been interpreted to mean the date when the claimant met the requirements for the benefits sought; this is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication indicating intent to apply for one or more benefits. An informal claim must also be in writing. Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); see also Szemraj v. Principi, 357 F.3d 1370 (2004) (defining when the "identification" requirement of 38 C.F.R. § 3.155(a) is met). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA is required to look to all communications from the appellant, which may be interpreted as applications or claims, formal and informal, for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196 (1992). The date of receipt is the date when a claim, information or evidence was received at VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). The mere presence of medical evidence of a condition does not establish the veteran's intent to seek service connection for such disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998). With that said, VA treatment records may constitute an informal claim for service connection if service connection has been previously established, or denied on the basis that the condition is noncompensable. See MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006); 38 C.F.R. § 3.157(b). The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.159(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157 (b)(2). Turning to the facts in this case, in August 1971, the Veteran sought treatment for chest pain and described a 7-year history of occasional chest pain. A clinician assessed the Veteran with an undiagnosed disease manifested by cardiac arrhythmia and chest pain. Later in August 1971, the Veteran filed a claim for service connection for "heart trouble aggravation". The AOJ denied the Veteran's claim for service connection for a cardiac disability in September 1971. The Veteran did not appeal this determination, and it became final. In June 1986, the Veteran requested a psychiatric evaluation following his complaints of anxiety. The Veteran was assessed with "possible issues related to military experience". In an October 1986 psychiatric intake assessment, the Veteran sought treatment for symptoms of anxiety and depression. A VA clinician diagnosed the Veteran with PTSD and depression. The Veteran filed a formal claim for service connection for PTSD on August 10, 2009. In December 2009, the AOJ granted service connection for PTSD effective August 10, 2009. In correspondence dated March 2011, the Veteran requested an effective date of October 7, 1986, or the date of his diagnosis with PTSD, for the award of service connection for PTSD. During his October 2016 hearing before the undersigned VLJ, the Veteran alleged that he sought treatment for PTSD symptoms in 1986. The Veteran indicated that he had not been informed of his diagnosis at that time; if he had been told, he stated that he would have filed a claim for service connection. Turning to an analysis of these facts, it is undisputed that the Veteran first filed a formal claim for service connection for PTSD in August 2009. At issue in this case, however, is whether the record contains an informal claim for service connection for PTSD before August 2009. In June 2019, the Veteran's representative advanced a number of arguments in favor of a finding that the Veteran filed an informal claim for service connection for an acquired psychiatric disorder as early as 1971. The Board will additionally address the alleged inadequacies that the Veteran has identified in the Board's now-vacated May 2017 decision. The Veteran's representative argued that the Board failed to consider pertinent evidence of record because it did not specifically list all of the evidence that it reviewed. While the Board must review the entire record, it need not discuss every piece of evidence in exhaustive detail. Instead, the Board's analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000). In this case, the Board has reviewed all of the evidence of record, including all service treatment records, VA and private medical records, and lay statements, and this decision summarizes the most relevant evidence. The Veteran's representative additionally argued that the Board lacks jurisdiction over the Veteran's claim because the AOJ has not properly adjudicated the claim. In support of this argument, the Veteran's representative noted that in April 2012, the AOJ issued a rating decision finding no clear and unmistakable error (CUE) in a previous rating decision that declined to grant an effective date of October 7, 1986, for service connection for PTSD. The AOJ's April 2012 rating decision misidentified the date of the previous rating decision as "February 26, 2010". The Veteran disagreed with this determination, and in a December 2012 statement of the case, the AOJ corrected its finding, stating that it found no CUE in the December 29, 2009, rating decision granting service connection for PTSD effective August 10, 2009. The Veteran's representative additionally noted that a November 2013 rating code sheet misidentified the original date of denial of service connection for a heart disability as December 29, 2009. The Board acknowledges that the Veteran's representative has accurately identified clerical or typographical errors. With that said, the Board places no weight in the argument that such errors invalidated the AOJ's adjudications of the Veteran's claim. These errors did not affect the substance of the AOJ's decisions, and such ministerial errors do not deprive the Board of jurisdiction to decide the Veteran's claim. The Veteran's representative additionally argued that the Board erred because VA failed to obtain records relating to the Veteran's March 1971 complaints of chest pain and his subsequent diagnosis with acute myocarditis. The Veteran's representative argued that if "the Board considered such records, [it] could find the Veteran's heart issues were a manifestation of his PTSD, thus finding the formal claim for "heart trouble" an earlier claim for PTSD". While the Board has considered this argument, such records are not pertinent to the Veteran's claim. Even if the Board were to accept the argument that the Veteran's cardiac complaints were indeed manifestations of an acquired psychiatric disability, such medical records do not themselves establish the Veteran's intent to apply for service connection for an acquired psychiatric disability. The presence or absence of such records is not pertinent to the Veteran's claim for an earlier effective date for service connection for PTSD. With respect to the date of the Veteran's claim for service connection, the Veteran's representative argued that the Veteran's August 1971 claim for "heart trouble aggravated" or "chest pains" was an informal claim for service connection for PTSD. The Veteran's representative argued that the Veteran's complaints of symptoms of chest pain and arrhythmia between 1969 and 1971 show "a likelihood that [the Veteran's] heart troubles were a manifestation of PTSD symptomatology". The Veteran's representative then argued that the Veteran's October 1986 psychiatric hospitalization was a petition to reopen the August 1971 claim. The Veteran's representative stated that in such a case, the date of receipt of the Veteran's claim is the date of the outpatient or hospital admission. While the Board has considered these arguments, a valid claim must, in pertinent part, demonstrate an intent to apply for benefits and identify the benefits sought. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Even under a sympathetic reading of the facts, the Veteran's August 1971 communication was not a claim, formal or informal, for service connection for PTSD or any other acquired psychiatric disability. The Veteran's August 1971 claim shows a clear intent to apply for service connection for a heart, chest, or cardiac disability. The August 1971 claim does not show a similar intent to apply for service connection for PTSD or any other acquired psychiatric disability. As such, the Board finds the August 1971 communication not to be an informal claim for service connection for an acquired psychiatric disability. Even if, however, the Board were to accept the argument that the cardiac symptoms that the Veteran reported before August 1971 were indeed manifestations of an acquired psychiatric disability, such medical records do not establish an intent to apply for service connection for an acquired psychiatric disability. Medical treatment records may indeed constitute an informal claim for service connection, but only when service connection has been previously established, or when service connection has been denied on the basis that the condition is noncompensable. See MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006); 38 C.F.R. § 3.157(b). Service connection had not been established for an acquired psychiatric disability before the Veteran's cardiac complaints. Service connection had not been denied for an acquired psychiatric disability on the basis that the condition was noncompensable. As such, medical treatment records dated before August 1971 showing cardiac complaints do not constitute an informal claim for benefits, and they do not support the argument that the Veteran's August 1971 communication was a claim for service connection for an acquired psychiatric disability. For similar reasons, records relating to the Veteran's October 1986 psychiatric hospitalization are not a petition to reopen the August 1971 claim. The date of a VA hospital admission only establishes the date of receipt of a claim to reopen when VA previously disallowed a formal claim for compensation because the service connected disability was not compensable in degree. See 38 C.F.R. § 3.157(b)(1). It is again noted that VA had not previously disallowed a claim for service connection for an acquired psychiatric disability in 1986. As such, the date of the Veteran's October 1986 psychiatric hospitalization is neither a valid claim for service connection nor a petition to reopen a previously denied claim for service connection. The Veteran's representative additionally argued that an earlier effective date for service connection for PTSD is warranted based on a liberalizing law, namely the addition of PTSD to the rating scheduled effective April 11, 1980. See 38 C.F.R. § 3.114(a), VAOPGCPREC 26-97 (July 16, 1997). A retroactive effective date for PTSD could be assigned if the Veteran met all eligibility criteria for the liberalized benefit on April 11, 1980, and such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement to benefits. In this case, however, the weight of the medical evidence is against a finding that the Veteran met the criteria for a diagnosis of PTSD as of April 11, 1980. Indeed, the Veteran's representative stated in June 2019 that the Veteran had been diagnosed with PTSD in 1986. An earlier effective date for the award of service connection for PTSD based on a liberalizing law is unwarranted. Thus, having considered the totality of the evidence of record, the Board concludes that the record does not contain a formal or informal claim for service connection for PTSD before August 2009. Having established the date of claim as August 10, 2009, the appropriate effective date for the award of service connection is the later of the date of receipt of claim or the date entitlement to benefits arose. See 38 U.S.C. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). Affording the Veteran with the benefit of the doubt, and with clinicians diagnosing the Veteran with PTSD before his August 10, 2009, date of claim, the Board finds that the Veteran's entitlement to service connection for PTSD arose before his August 10, 2009, date of claim. Thus, August 10, 2009, which is the later of the Veteran's date of claim and the date when his entitlement to benefits arose, is the proper date for the award of service connection for PTSD. In conclusion, the Board finds that an effective date before August 10, 2009, for the award of service connection for PTSD is unwarranted. When all the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, in which case the claimant prevails, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim, and it is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.