Citation Nr: 21077562 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 17-31 267 DATE: December 30, 2021 ORDER Entitlement to an earlier effective date of June 25, 2003 for the award of service connection for post-traumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran first filed a service connection claim for PTSD on June 25, 2003, which was pending at the time of a July 2013 rating decision that awarded service connection for PTSD, when the timeliness of the substantive appeal is waived in the interest of due process due to lack of proper notice of a March 2004 statement of the case. CONCLUSION OF LAW The criteria for an earlier effective date of June 25, 2003 for the award of service connection for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1987 to October 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision that granted service connection for PTSD, effective April 9, 2012. The Board acknowledges the Agency of Original Jurisdiction (AOJ) issued a second rating decision in May 2014 that purported to deny an earlier effective date of service connection for PTSD, in response to the Veteran's timely August 2013 notice of disagreement in response to the July 2013 rating decision; however, this second rating decision was unnecessary as an appeal for an earlier effective date is not a freestanding claim that requires a separate rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). As a result, the Veteran's appeal relates back to the July 2013 rating decision that assigned the initial effective date for PTSD. Analysis Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In this case, the Veteran first filed a service connection claim for PTSD on June 25, 2003, which was more than one year after his separation from active service. A January 2004 rating decision denied service connection for PTSD. The record reflects the Veteran filed a timely notice of disagreement even though the notice letter for the January 2004 rating decision was returned undeliverable. The record further reflects, that after the notice letter for the January 2004 rating decision was returned undeliverable, the AOJ began to send correspondence, to include a March 2004 statement of the case, to the Veteran at a variety of different addresses even though the AOJ had conclusive evidence in its possession, at that time, that the Veteran was in a domiciliary program at the Dallas VA Medical Center following a hospitalization related to suicidal ideation. It appears the AOJ sent the March 2004 statement of the case to two different addresses, neither of which was the Veteran's last confirmed address as reported on his June 2003 service connection claim, with both attempts to mail the statement of the case being returned undeliverable; therefore, there is clear and convincing evidence that the Veteran never received notice of the March 2004 statement of the case. Pertinent to the Veteran's claim and the time period in question, under what is now known as the legacy system, an appeal consisted of a timely filed written notice of disagreement with a rating decision and, after a statement of the case was furnished, a timely filed substantive appeal. 38 C.F.R. §§ 20.200, 20.202 (2018). As a general rule, a substantive appeal was required to be filed within 60 days from the date that the AOJ mailed the statement of the case to the claimant or within the remainder of the one-year period from the date of mailing of the notification of the determination (rating decision) being appealed, whichever period ends later. 38 C.F.R. § 20.302 (2018). Further, VA regulation provided that an extension of time for filing a substantive appeal may be granted for good cause. 38 C.F.R. § 20.303 (2018). Significantly, the United States Court of Appeal for Veteran Claims has also held that VA may waive any untimely substantive appeal, explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45-47 (2009). Under the circumstances present in this case, the Board finds due process concerns related to lack of proper notice of the March 2004 statement of the case warrant waiving the timeliness of the substantive appeal in response thereto. In light of this finding, the Board further finds the Veteran's initial June 25, 2003 claim was pending at the time of the July 2013 rating decision that awarded service connection for PTSD. As a result, the criteria for an earlier effective date of June 25, 2003 for the award of service connection for PTSD have been met, resulting in a full grant of the benefit sought on appeal. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.