Citation Nr: 21073620 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 16-55 298 DATE: December 9, 2021 ORDER Entitlement to an earlier effective date prior to April 8, 2016 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an earlier effective date prior to April 8, 2016 for the grant of service connection for tinnitus is denied. Entitlement to an earlier effective date prior to April 8, 2016 for the grant of service connection for sleep apnea is denied. Entitlement to an earlier effective date prior to April 8, 2016 for the grant of service connection for left ulnar nerve neuritis is denied. Entitlement to an earlier effective date prior to April 8, 2016 for the grant of service connection for right leg tibia stress fracture is denied. FINDINGS OF FACT 1. The Veteran separated from active duty on April 1, 2015. 2. On April 8, 2016, VA received an Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ) by fax from the Veteran's representative. 3. In a June 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for PTSD, tinnitus, sleep apnea, left ulnar nerve neuritis, and right leg tibia stress fracture, each effective April 8, 2016. 4. No claim, or intent to file a claim, for service connection for the claimed disabilities was received by VA prior to April 8, 2016. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to April 8, 2016 for the grant of service connection for PTSD are not met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.160, 3.400. 2. The criteria for an effective date prior to April 8, 2016 for the grant of service connection for tinnitus are not met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.160, 3.400. 3. The criteria for an effective date prior to April 8, 2016 for the grant of service connection for sleep apnea are not met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.160, 3.400. 4. The criteria for an effective date prior to April 8, 2016 for the grant of service connection for left ulnar nerve neuritis are not met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.160, 3.400. 5. The criteria for an effective date prior to April 8, 2016 for the grant of service connection for right leg tibia stress fracture are not met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.160, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 13, 2007 to April 1, 2015. This case comes to the Board of Veterans' Appeals (Board) on appeal from a decision of the Agency of Original Jurisdiction (AOJ) dated in June 2016 that in pertinent part, granted service connection for PTSD, tinnitus, sleep apnea, left ulnar nerve neuritis, and right leg tibia stress fracture, each effective April 8, 2016. The Veteran appealed for an earlier effective date. The Veteran testified before the undersigned Veterans Law Judge at an August 2021 hearing; a transcript of the hearing is of record. Earlier Effective Date Governing law and regulation provide that the effective date for an award of service connection for claims received within one year after separation from service shall be the day following separation from service, or date entitlement arose; otherwise, the effective date shall be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b)(1); 38 C.F.R. §§ 3.400 (b)(2). As pertinent to this case, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). A complete claim is required for all types of claims, and will generally be considered filed as of the date it was received by VA for an evaluation or award of benefits under the laws administered by VA. 38 C.F.R. § 3.155 (d). A claimant or his duly authorized representative who indicates a desire to file for benefits under the laws administered by VA, by a communication or action, to include an electronic mail that is transmitted through VA's electronic portal or otherwise, that does not meet the standards of a complete claim is considered a request for an application form for benefits under § 3.150(a). Upon receipt of such a communication or action, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155 (a). A claimant or his duly authorized representative may indicate a claimant's desire to file a claim for benefits by submitting an intent to file a claim to VA. An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in paragraph (a) of § 3.160, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155 (b). An intent to file a claim can be submitted in one of the following three ways: (i) Saved electronic application. When an application otherwise meeting the requirements of this paragraph (b) is electronically initiated and saved in a claims-submission tool within a VA web-based electronic claims application system prior to filing of a complete claim, VA will consider that application to be an intent to file a claim. (ii) Written intent on prescribed intent to file a claim form. The submission to an agency of original jurisdiction of a signed and dated intent to file a claim, on the form prescribed by the Secretary for that purpose, will be accepted as an intent to file a claim. (iii) Oral intent communicated to designated VA personnel and recorded in writing. An oral statement of intent to file a claim will be accepted if it is directed to a VA employee designated to receive such a communication, the VA employee receiving this information follows the provisions set forth in § 3.217(b), and the VA employee documents the date VA received the claimant's intent to file a claim in the claimant's records. 38 C.F.R. § 3.155 (b)(i), (ii), (iii). A complete claim is a submission of an application form prescribed by the Secretary, whether paper or electronic, that meets the following requirements: A complete claim must provide the name of the claimant; the relationship to the veteran, if applicable; and sufficient service information for VA to verify the claimed service, if applicable. A complete claim must be signed by the claimant or a person legally authorized to sign for the claimant. A complete claim must identify the benefit sought, and a description of any symptom(s) or medical condition(s) on which the benefit is based must be provided to the extent the form prescribed by the Secretary so requires. 38 C.F.R. § 3.160 (a). An original claim is the initial complete claim for one or more benefits on an application form prescribed by the Secretary. 38 C.F.R. § 3.160 (b). 1. Entitlement to an earlier effective date prior to April 8, 2016 for the grant of service connection for PTSD 2. Entitlement to an earlier effective date prior to April 8, 2016 for the grant of service connection for tinnitus 3. Entitlement to an earlier effective date prior to April 8, 2016 for the grant of service connection for sleep apnea 4. Entitlement to an earlier effective date prior to April 8, 2016 for the grant of service connection for left ulnar nerve neuritis 5. Entitlement to an earlier effective date prior to April 8, 2016 for the grant of service connection for right leg tibia stress fracture In this case, the Veteran's original claim for service connection was received by VA on April 8, 2016, and in a June 2016 rating decision, the AOJ granted entitlement to service connection for the above disabilities from April 8, 2016, the date of receipt of the claim. The Veteran seeks an earlier effective date of April 1, 2015 for the grant of service connection for PTSD, tinnitus, sleep apnea, left ulnar nerve neuritis, and right leg tibia stress fracture. He contends that he attempted to submit his claim to VA online several times on March 31, 2016, at 2:45 p.m., but the system was down. See his July 2016 notice of disagreement, August 2021 Board hearing transcript, pages 3-4. Essentially, he asserts that since he attempted to file his claim electronically within one year of his separation from service, an earlier effective date is warranted. At the Board hearing, he testified that he also attempted to send a message to VA that day, to obtain information on his options to submit a claim, "Because I was aware that as of 11:59 p.m. that night that my claim would be beyond that time limit." See transcript, page 3. However, he was unable to send a message because he received an error message stating that FIRP was unavailable. He then called VA's 1-800 telephone number and spoke with a VA representative who told him to print a hard copy and fax it to the Regional Office (RO), or submit it online. Next, he attempted to find out who his local Veterans Service Organization (VSO) was, because he did not know who they were and had never interacted with them. Finally, when he tried to contact the local VSO, the office had already closed for the day. A review of the claims file reflects that on April 8, 2016, VA received the Veteran's original claim, an Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ) for service connection for the above disabilities. This claim was signed by the Veteran on March 22, 2016 and received by VA on April 8, 2016. The claim was faxed to VA by his representative, a VSO, on April 8, 2016, along with several other documents. The representative also submitted a cover letter dated on April 8, 2016, an Appointment of VSO as Claimant's Representative (VA Form 21-22), the Veteran's DD Form 214, the Veteran's Statement in Support of Claim for Service connection for PTSD (VA Form 21-0781), an Authorization to Disclose Information to VA (VA Form 21-4142), and a General Release for Medical Provider Information to the VA (VA Form 21-4142a). The VA Form 21-0781 and VA Form 21-4142 were signed by the Veteran on March 22, 2016. The VA Form 21-22 was signed by the Veteran and his representative on April 8, 2016. In July 2016, with his notice of disagreement, the Veteran submitted a printout from the VA eBenefits website that stated "Attention: eBenefits users who have not previously submitted a claim may experience errors when trying to submit a new claim or update their personal contact information. We are working diligently to resolve the issue and hope to return to full service soon. If you need immediate assistance, please contact your Regional Office. We apologize for any inconvenience. FIRP is currently unavailable. We apologize for any inconvenience." "Online Applications. Alert: Application Error. We're sorry, but the application has encountered an error. Please try again later or contact the VA at 1-800-827-1000. Please refer to the following error code: VDC-1459482103514." Upon review of the record, the Board finds that an effective date earlier than April 8, 2016, for the award of service connection for PTSD, tinnitus, sleep apnea, left ulnar nerve neuritis, and right leg tibia stress fracture is not warranted. The evidence does not reflect that a claim or intent to file a claim was received by VA prior to April 8, 2016. The Board has reviewed the computer printout from the Veteran showing a failed submission of an application. The printout has an illegible print date at the bottom of the page, and it is not clear when it was printed. However, even assuming that the document was printed on March 31, 2016 as stated by the Veteran, his claim is not considered to have been received by VA for the purposes of determining an effective date, because the claim was not successfully submitted electronically. The Board also finds that this printout may not be considered to be an intent to file a claim as a saved electronic application, because there is no evidence that his application was electronically initiated and saved in a claims-submission tool within a VA web-based electronic claims application system. 38 C.F.R. § 3.155 (b)(i) (2018). The Board finds that the Veteran's reported telephone call to VA on March 31, 2016 does not constitute a complete claim, or an intent to file a claim. Rather, this telephone call is considered a request for an application form for benefits under § 3.150 (a), because it does not meet the standards of a complete claim. 38 C.F.R. § 3.155 (a) (2018). Furthermore, the call may not be considered an intent to file a claim because it was not documented by a VA employee in the Veteran's records, and there is no written record of such a call. 38 C.F.R. § 3.155 (b)(iii) (2018). Moreover, the Veteran has testified that he attempted to submit his claim using the online portal on March 31, 2016, and was aware that the submission failed on that day, at which point he called VA at the 1-800 telephone number, and a VA representative told him to print a hard copy of his claim and fax it to VA. The Veteran has also testified that he knew that the claim needed to be filed that day. In the representative's April 8, 2016 letter to VA forwarding the Veteran's claim to VA by fax, the representative did not mention any prior attempts by the Veteran to file a claim with VA. The record does not reflect, and the Veteran does not contend, that he attempted to fax his claim to VA prior to April 8, 2016. As the claim for service connection was received by VA more than one year after the Veteran's separation from service, the effective date of service connection may be no earlier than the date of receipt of claim. In sum, the Board finds that that an earlier effective date prior to April 8, 2016 for the grant of entitlement to service connection for PTSD, tinnitus, sleep apnea, left ulnar nerve neuritis, and right leg tibia stress fracture is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim and the appeal must be denied. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.