Citation Nr: 21009138 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 18-35 404 DATE: February 19, 2021 ORDER Entitlement to an effective date prior to September 3, 2014 for the grant of service connection for posttraumatic stress disorder (PTSD) with alcohol abuse in sustained remission is denied. FINDING OF FACT The Veteran’s petition for an upgraded character of discharge was received by the Board for Correction of Naval Records on December 17, 2014. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to September 3, 2014 for the grant of service connection for posttraumatic stress disorder (PTSD) with alcohol abuse in sustained remission have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(g). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to March 1968. In a September 2019 Board of Veterans’ Appeals (Board) decision the Board denied entitlement to an effective date prior to September 3, 2014. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (Court) which, in a July 2020, vacated and remanded the issue for action consistent with a Joint Motion for Remand (Joint Motion). Entitlement to an effective date prior to September 3, 2014 for the grant of service connection for posttraumatic stress disorder (PTSD) with alcohol abuse in sustained remission The Veteran contends that the effective date for the grant of service connection for his PTSD disability should go back to February 2, 2005, the date he filed his claim. Under governing law, the effective date for a grant of compensation will be the day following separation from active service, or the date entitlement arose if a claim is received within one year after separation from service. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. Id. In cases involving the correction of military records, as is the case here, the applicable law can be found at either 38 U.S.C. §5110(i) or 38 C.F.R. §3.400(g). According to 38 U.S.C. §5110(i), whenever, any disallowed claim is reopened and thereafter allowed on the basis of new and material evidence resulting from the correction, change or modification of a military record, or of a discharge or dismissal, by a Board established under 10 U.S.C. § 1552 or § 1553, or because of other corrective action by competent military naval, or air authority an award is effective from the latest of the following dates: (1) date application for change, correction, or modification was filed with the service department, in either an original or a disallowed claim; (2) date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of reopening of such disallowed claim. Under 38 C.F.R. §3.400(g), the award will be effective from the latest of these dates: (1) date application for change correction, or modification was filed with the service department, in either an original or a disallowed claim; (2) date such disallowed claim was filed; (3) one year prior to date of reopening of disallowed claim. In the July 2020 CAVC JMR the Court found that the Board erred in its finding regarding the date of application for correction of the Veteran’s military record and in providing an inadequate statement of reasons or bases as to the applicable law governing effective dates. Specifically, the Court stated the governing language of the statue and regulation are not identical and that 38 U.S.C. § 5110(i) does not appear to address the effective date for original claims and as the Board indicated the claim for PTSD remained unadjudicated on the merits until the June 2015 rating decision, the precise law the Board relied on was unclear. First, the Board will address whether the Veteran’s claim for PTSD was an original or disallowed claim. In February 2005, the Veteran filed a claim of service connection for PTSD. He was notified in VA correspondence dated June 27, 2005 and April 3, 2006 that his character of discharge was a bar to all VA benefits and that he could request a change from the Service Department Discharge Review Board at the Board of Corrections of Naval Records (BCNR). In the meantime, the preliminary issue of whether the Veteran’s character of discharge from service was a bar to VA benefits had been appealed to the Board where it was remanded multiple times for additional development. See Board Remands dated November 2008, April 2010, and January 2011. The character of discharge issue was ultimately denied in a July 2012 Board decision that was later vacated and remanded by the United States Court of Appeals for Veterans Claims (Court)in October 2013. The July 2012 Board decision also noted that a claim for service connection for PTSD had been raised, but not adjudicated and that issue was referred to the RO for adjudication. The Board remanded the character of discharge issue in August 2014 to obtain relevant records from BCNR decisions on the Veteran’s character of discharge. Ultimately, in a February 2015 administrative decision by the Discharge Review Board, the Veteran’s discharge was upgraded to a general discharge. A June 2015 RO rating decision granted service connection for PTSD effective September 3, 2014. Based on the information above it is clear that the Veteran’s claim for service connection for PTSD is an original claim. The Veteran filed the claim in February 2005 and it was continuously pursued until the character of discharge was upgraded to general and the claim was granted in June 2015. Accordingly, the applicable law regarding effective dates is that outlined under 38 C.F.R. §3.400(g) for original and disallowed claims. As noted above, the award will be effective from the latest of these dates: (1) date application for change correction, or modification was filed with the service department, in either an original or a disallowed claim; (2) date such disallowed claim was filed; (3) one year prior to date of reopening of disallowed claim. Next, the Board will address whether September 3, 2014 is the correct date the Veteran filed his petition with the BCNR. The Board notes that the RO assigned the date of September 3, 2014 because they erroneously concluded that was the date the Veteran’s petition was received by the BCNR. A review of the BCNR administrative decision however states that is the date of a Secretary of Defense Memorandum identified in the BCNR decision, not the date of the Veteran’s application. A review of the record reflects that while it is unclear exactly what date the Veteran submitted his petition, according to the BCNR review, the review Board stated that, upon request, the Department of Veterans Affairs should be informed that the Veteran’s application was received by the BCNR on December 17, 2014. See February 2014 BCNR administrative decision. The decision noted that the Veteran’s application was not filed in a timely manner but in the interest of justice the Board waived the statute of limitations and reviewed the application on its merits. The BCNR review shows that the Veteran’s application was an affidavit, accompanied by a clinical psychological evaluation, and legal counsel dissertation attesting to the fact that his misconduct and subsequent administrative discharge were due to the now diagnosed symptoms of PTSD. Given that the Veteran’s claim for service connection for PTSD is an original claim, and the Veteran’s affidavit noted above was received by the BCNR on December 17, 2014, the effective date of the grant of service connection for PTSD should be December 17, 2014 which is later than the currently assigned effective date of September 3, 2014. The earliest ascertainable date the Veteran submitted his affidavit/petition was December 1, 2014, according to a review of the claims file. In any event, the currently assigned effective date is more favorable to the Veteran as it is earlier than the effective date that should be assigned. In sum, the evidence is against a finding for an effective date prior to September 3, 2014 for the grant of service connection for PTSD with alcohol abuse in sustained remission and the claim is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, 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.