Citation Nr: 21075648 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-23 781 DATE: December 21, 2021 ORDER Entitlement to an effective date earlier than June 12, 2014, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a rating in excess of 50 percent for PTSD is remanded. FINDINGS OF FACT 1. The Veteran first filed a claim of service connection for PTSD on June 12, 2015. 2. Pursuant to Section 506 of Public Law 112-154, the Regional Office (RO) assigned an effective date of June 12, 2014, which is the earliest effective date permitted by law. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than June 12, 2014, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5101, 5110 (2018); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1972 to February 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by the Department of Veterans Affairs (VA) RO that granted service connection for PTSD and assigned an effective date of June 12, 2014. In September 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Entitlement to an effective date earlier than June 12, 2014, for the grant of service connection for PTSD is denied. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An initial claim includes a new claim requesting service connection and a claim for increase in a disability evaluation rating. See 38 C.F.R. § 3.1(p). Prior to March 24, 2015, a claim 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) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). The Veteran asserts that he is entitled to an effective date based on applications submitted to VA in 1981 and 1982, or, alternatively, based on the date of his PTSD diagnosis. In this case, the Veteran initially filed a VA Form 21-526, "Veteran's Application for Compensation or Pension," which was received by VA on September 22, 1981. On this application, he indicated that the only previous claim for VA benefits filed was for VA educational assistance. Under item 24, nature of sickness, disease, or injuries for which the claim was being made and date each began, he listed "skin condition" and "liver problem" and noted that he was treated by the VA medical center during a September 14, 1981, examination. The claim file includes an examination that took place on September 4, 1981; that examination does not mention any psychiatric complaints, issues, or diagnoses. Further, items 26, 27, and 28 of the VA Form 21-526, included an instruction that these items need not be completed unless he was claiming compensation for a disability incurred in service. This section of the form is blank. He completed additional sections of the form, including net worth and income information, which the instructions indicated should only be completed if he was claiming to be totally disabled and applying for nonservice-connected pension. A November 1981 rating decision denied entitlement to pension. Additional evidence was received within one year of that decision. Following receipt of a November 1981 VA treatment record addressing non-psychiatric disabilities, a November 1981 administrative decision continued the denial of entitlement to pension. In May 1982, the Veteran submitted a VA Form 21-527, Income-Net Worth and Employment Statement, identifying a "nervous condition" as his illness during the past 12 months; this form was submitted in support of a claim for total disability benefits. In September 1982 correspondence, the Veteran's private treating physician concluded that his mental illness would "interfere with his obtaining and keeping employment." Following receipt of that correspondence, a November 1982 VA neuropsychiatric examination was conducted. [The Board notes here that the clinical record notes that the examination was conducted for compensation purposes, but there is nothing else in the claim file to support such being the case as the report focuses on the Veteran's ability to maintain employment.] The examiner concluded that most of the Veteran's depression stemmed from situational problems, such as his inability to get married or find gainful employment, and opined that he "could work on a part time basis at least." A December 1982 administrative decision continued to deny his claim for pension benefits. The Veteran did not appeal that decision and no additional evidence was received within one year of that decision. In June 2015, the Veteran submitted a claim for service connection for PTSD based on injuries received during riots that took place during service that resulted in physical and mental injuries. The RO was unable to verify this claimed stressor, and service connection for PTSD was denied in a January 2016 rating decision. The Veteran requested reconsideration, claiming that his PTSD was a result of the riots, as well as him being in fear of his life while at Da Nang Air Force Base. Service connection for PTSD was granted in a May 2016 rating decision, effective June 12, 2014 (based on Section 506 of Public Law 112-154 which allowed for an effective date of one year prior to the Veteran's date of claim). After reviewing the foregoing procedural history, the Board finds that there is no document received prior to the June 2015 claim that can be considered a claim of service connection for any psychological disorder. As discussed above, the applications filed in 1981 and 1982 were for pension, not compensation. Accordingly, they cannot serve as the basis for an earlier effective date for the grant of service connection for PTSD. The Veteran also contends that the effective date assigned should be based on the date of his PTSD diagnosis in 2007. However, as the effective date is the later of either the date of receipt of claim, or the date entitlement arose, the date of his PTSD diagnosis cannot serve as the effective date. In other words, because the date of receipt of claim (June 2015) is later than the date of diagnosis or when entitlement arose, that date must serve as the effective date. See generally 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Additionally, the Veteran also contends that 38 C.F.R. § 3.156(c) is applicable in this case since his service treatment records (STRs) were not of record at the time of the 1981 and 1982 rating decisions. Pursuant to 38 C.F.R. § 3.156(c)(1), if, at any time after VA issues a decision on a claim, VA receives or associates with the claim file relevant official service department records that existed and had not been associated with the file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1) (emphasis added). As previously discussed, however, VA first decided the Veteran's claim of service connection for PTSD following his June 2015 application. There is nothing in the file to indicate that he filed for service connection for PTSD prior to this date. Accordingly, whether additional STRs were added to the file following that initial claim (which eventually led to the grant of service connection) is immaterial to whether the Veteran is entitled to an earlier effective date because there was no prior decision addressing entitlement to service connection for PTSD. The RO assigned an effective date of June 12, 2014, under the provisions of Public Law No. 112-154, Section 506, now codified at 38 U.S.C. § 5010. This effective date is retroactive from the date VA received the Veteran's first and only claim of service connection for PTSD. See VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), received by VA on June 12, 2015. An effective date prior to June 12, 2014, is not warranted. The Board has reviewed the communications from the Veteran contained within the claim file and has found no indication of any intent to apply for service connection of PTSD dated prior to June 12, 2015. The effective date assigned, June 12, 2014, is the earliest effective date permitted by law. See Public Law No. 112-154, Section 506, now codified at 38 U.S.C. § 5010. Accordingly, the claim for an earlier effective date is denied. REASONS FOR REMAND Entitlement to a rating in excess of 50 percent for PTSD is remanded. The Veteran timely filed a notice of disagreement with the May 2016 rating decision that granted service connection for PTSD and assigned a 30 percent rating. See September 2016 notice of disagreement regarding the disability rating assigned. A subsequent March 2018 rating decision granted a 50 percent rating for the appeal period, but denied a rating in excess of 50 percent. To date, the Agency of Original Jurisdiction (AOJ) has not issued a statement of the case (SOC) regarding this issue. In such circumstances, the Board is required to remand for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). The matter is REMANDED for the following action: Issue an appropriate SOC addressing the issue of the Veteran's claim for an increased rating for PTSD. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.