Citation Nr: 21007087 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-25 126 DATE: February 8, 2021 ORDER Entitlement to an effective date prior to July 26, 2016, for entitlement to service connection for post-traumatic stress disorder (PTSD) with major depressive disorder is denied. FINDINGS OF FACT 1. A claim for entitlement to service connection for PTSD was denied in a January 2005 rating decision. The January 2005 rating decision became final because the Veteran did not submit a notice of disagreement or new and material evidence within the appeal period. 2. The Veteran submitted a request to reopen his claim for entitlement to service connection for PTSD that was received on July 26, 2016; no document received prior to July 26, 2016, may be construed as a request to reopen a claim for entitlement to service connection. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to July 26, 2016, for entitlement to service connection for PTSD with major depressive disorder have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from October 1974 to October 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to service connection for PTSD with major depressive disorder from July 26, 2016. In July 2020, the Veteran testified before the undersigned at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. Referral of Claim At the outset, the Board notes that the Veteran’s representative asserted in July 2020 correspondence that a prior January 2005 rating decision that denied entitlement to service connection for PTSD contained clear and unmistakable error, or CUE. He reiterated these contentions at the Veteran’s July 2020 hearing. To date, however, the RO has not addressed these contentions in the first instance. As such, the Board lacks jurisdiction over this claim at this juncture. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2012); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). Because this argument has been raised but not yet adjudicated, the Board hereby refers the issue of CUE in the January 2005 rating decision that denied service connection for PTSD to the RO for adjudication in the first instance. Earlier Effective Date By way of procedural background, the Veteran filed a claim for entitlement to service connection for PTSD, depression, and anxiety in June 2004. These claims were denied in an October 2004 rating decision. Thereafter, new evidence with respect to PTSD was received within the appeal period and the RO issued a new rating decision denying service connection in January 2005. The Veteran was notified of this rating decision in a February 2005 notification letter. The Veteran did not appeal this rating decision or submit new and material evidence within one year. As such, the January 2005 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. In July 2016, the Veteran filed a new claim for service connection for PTSD, which was granted in a December 2016 rating decision. In that rating decision, the RO assigned an effective date of July 26, 2016, based on the date the Veteran’s claim was received. In a January 2017 notice of disagreement, the Veteran argued that service connection for PTSD should have been granted from 2004, when he filed his original claim for service connection for PTSD. Generally, the effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b). Effective March 24, 2015, VA amended various regulations governing how to file a claim. The amended regulations require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.31(p), 3.151, 3.155). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). At the time that these amendments were made, VA also deleted a regulation that allowed various documents to be considered informal claims. Notably, prior to the date the amendments became effective, a report of examination or hospitalization could be accepted as an informal claim for benefits in claims for an increased disability rating or to reopen a claim after a final disallowance. See 79 Fed. Reg. 57,660, 57,675 (Sept. 25, 2014) (removing then-current 38 C.F.R. § 3.157(b)). Having carefully reviewed the claims file in its entirety, the Board finds that the earliest effective date allowable by law has already been assigned. Although the Veteran previously filed a claim for service connection for PTSD that was received in June 2004, this claim was denied in January 2005. As set forth above, this decision became final. It was not until July 2016 when VA received the Veteran’s new claim for PTSD. Although the Veteran did not characterize his new claim as a claim to reopen his prior claim for PTSD, the Board finds that the scope of his new claim encompassed his prior claim and stemmed from the same traumatic events. See Velez v. Shinseki, 23 Vet. App. 199 (2009). As such, the July 2016 claim is best characterized as a claim to reopen his previously denied claim for service connection. To reiterate, the effective date of an evaluation and award of compensation based on a claim reopened after final disallowance is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. Indeed, although entitlement to service connection for PTSD with major depressive disorder might have arisen prior to July 2016, the July 2016 claim to reopen was received over a decade after the prior January 2005 rating decision was issued. Although the Board has carefully reviewed the Veteran’s post-service medical treatment records, which reflect a history of treatment for mental health issues, these records of treatment alone do not constitute a claim for benefits. Moreover, the record does not contain any reports of examination or hospitalization that were received prior to March 24, 2015, that could have been characterized as an informal claim to reopen the claim for PTSD. Ultimately, there is simply no evidence of record indicating that the Veteran submitted any other formal or informal claims to reopen his claim prior to July 2016. To that end, the only documents associated with the claims file after the January 2005 rating decision but prior to the July 2016 claim are notification letters from VA, documents regarding disbursement of vocational rehabilitation benefits, SHARE print screens, audit records, and Freedom of Information Act requests and responses. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. Although the Board is sympathetic to the Veteran and his situation, the earliest effective date allowable by law for entitlement to service connection has already been assigned. As such, the claim that an effective date prior to July 26, 2016, is warranted on a non-CUE basis must be denied as a matter of law. 38 U.S.C. § 5107(b); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Last, the Board notes that although it has referred the issue of CUE in the January 2005 rating decision to the RO for adjudication in the first instance, the referred issue is not inextricably intertwined with the earlier effective date claim decided herein. The Board cannot conceive of how the above decision on the effective date claim would prejudice a future decision with respect to CUE. Indeed, CUE and effective date issues involve separate and distinct criteria: an effective date issue involves the legal question of a date of claim or the factual question of the date entitlement to service connection arose, whereas CUE is based on specific and undebatable legal or factual error resulting in a different merits-based outcome with respect to a claim. Should CUE be found to exist in the prior January 2005 rating decision that denied service connection for PTSD, the prior decision will be amended accordingly, and appropriate benefits will be awarded. If CUE is not found, there is no impact on the decision here. Likewise, the decision here has no bearing on any future CUE determination with respect to the January 2005 rating decision. Yvette R. White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, Associate 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.