Citation Nr: 21009391 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 18-19 621 DATE: February 22, 2021 ORDER Entitlement to an effective date of July 17, 2015, for the award of service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to an effective date of July 17, 2015, for the award of service connection for coronary artery disease s/p myocardial infarction (CAD) is granted. FINDING OF FACT The Veteran first filed claims of entitlement to service connection for PTSD and CAD that were received by the Department of Veterans Affairs (VA) on July 17, 2015; the July 17, 2015 claims were not finally adjudicated until the claims were granted in a November 2017 rating decision. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of July 17, 2015, for the award of service connection for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155 and 3.400(b)(2). 2. The criteria for entitlement to an effective date of July 17, 2015, for the award of service connection for CAD have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155 and 3.400(b)(2). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from January 1966 to October 1967. The Veteran testified by the undersigned at a January 2021 Board Hearing held via videoconference. The claims file contains a transcript of the hearing. 1. Entitlement to an effective date earlier than September 18, 2017, for the grant of service connection for PTSD The Veteran contends that he is entitled to an effective date earlier than September 18, 2017, for the grant of service connection for PTSD because he first filed a claim in 2015 that was initially rejected for technical reasons that he tried to cure and, ultimately, was never notified by VA that the defects in his claim had not been cured and the claim not accepted. See January 2021 Board Hearing Tr. at 3-4. The Veteran’s initial claim of entitlement to service connection for PTSD (as well as ischemic heart disease, bilateral hearing loss, and tinnitus) was received by VA on July 17, 2015. See July 2015 VA Form 21-526b (Supplemental Claim). However, regulations that went into effect in March 2015 required specific claims forms to be used for initial claims; for an initial claim of entitlement to service connection, the claim form would be a VA Form 21-526EZ. The Veteran was notified that he had not submitted the correct claims form in a July 2015 Notice Letter, which gave him one year from the date of the letter to file the correct form. The Veteran then filed an August 2015 VA 21-526b which he signed and in which he sought service connection for the same conditions. In an August 2015 Notice Letter, VA informed the Veteran again that he needed to file his claim on the proper form and identified the VA Form 21-526EZ as the appropriate form. Thereafter, the Veteran filed a September 2015 VA Form 21-526EZ again claiming entitlement to service connection for PTSD, CAD, bilateral hearing loss, and tinnitus. He also resubmitted his August 2015 VA 21-526b on the same day. The 526EZ was not signed; the 526b was signed. The next document in the claims file is the Veteran’s September 2017 VA Form 21-526EZ. As indicated in the notice letters, VA regulations require that claims be submitted on particular forms and, among other requirements, the form must provide the name of the claimant, must include the claimant’s signature, and must identify the benefit sought. See, e.g., 38 C.F.R. § 3.160(a); see also 38 C.F.R. § 3.155(d)(1) (providing in relevant part: “A complete claim is required for all types of claims . . .”). Therefore, none of the July, August, or September 2015 forms submitted by the Veteran were a “complete” claim as defined in section 3.160(a). However, the regulations provide that, where the Veteran submits an improper form or an incomplete application form, the Veteran must be notified “of the information necessary to complete the application form prescribed by the Secretary.” 38 C.F.R. § 3.155(c) (incomplete application form) and (d)(1)(i) (“Upon receipt of a communication indicating a belief in entitlement to benefits that is submitted in writing or electronically on a supplemental claim form prescribed by the Secretary that is not complete as defined in § 3.160(a) of this section, the Secretary shall notify the claimant . . . of the information necessary to complete the application form”). In this case, VA sent a notice letter subsequent to the initial, July 2015 VA Form 21-526b. The VA also sent the required notice after the August 2015 VA 21-526b. However, after the Veteran submitted his September 2015 VA Form 21-526EZ, VA never sent a notice letter as required under 38 C.F.R. § 3.155(c) informing him that his application form was incomplete due to a lack of signature. The Veteran credibly testified that he was unaware that the September 2015 VA Form 21-526EZ had not been accepted as a complete claim. See January 2021 Board Hearing Tr. at 4-5. While the modernized VA appeals system requires particular forms to accomplish specific tasks (e.g. a complete application to begin a claim), there are uniquely pro-claimant principles underlying the veterans’ benefits system. See Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 710 F.3d 1328, 1330 (Fed. Cir. 2013); Evans v. Shinseki, 25 Vet. App. 7, 14 (2011) (stating that the VA system is “veteran-friendly” and “non-adversarial”); Kouvaris v. Shinseki, 22 Vet. App. 377, 381 (2009) (noting that the veterans’ benefits system is a “veteran-friendly” system); see also Shinseki v. Sanders, 556 U.S. 396, 412 (2009) (“Congress has expressed special solicitude for the veterans’ cause…..the adjudicatory process is not truly adversarial”). As the United States Court of Appeals for the Federal Circuit put it, “[t]he VA disability compensation system is not meant to be a trap for the unwary.” Comer v. Peake, 552 F.3d 1362, 1369 (Fed.Cir. 2009). In the particular circumstances of this case, the Veteran filed an initial package indicating an intent to seek benefits on July 17, 2015. The package included everything necessary for a claim as the law stood prior to March 2015. Moreover, the submission contained everything necessary for a complete claim at the time except for the fact that it was on a VA Form 21-526b rather than a VA Form 21-526EZ. After receiving notice of the deficiency, the Veteran submitted a VA Form 21-526EZ, but neglected to sign the form. The regulations explicitly require VA to give notice of deficiencies like that and an opportunity to cure the defect. VA did not do so. The Veteran, who made multiple good faith efforts to supply the necessary information on the right form, will not be penalized where it was VA who failed to notify him of the deficiency as required by law. The remaining question is what date in 2015 is the appropriate effect date. Under 38 C.F.R. § 3.400(b)(1)(ii), the proper effective date is generally the date of receipt of claim. Moreover, 38 C.F.R. § 3.155(d)(1)(i) provides that, if VA receives a complete claim within 60 days of notice by VA that an incomplete claim was filed on a supplemental claim form (as here), the claim will be considered as filed as of the date of receipt of the incomplete claim. See also 38 C.F.R. § 3.155(c) (providing one year to cure defects in an incomplete application form). Here, the Veteran submitted a September 2015 VA Form 21-526EZ within 60 days of his July 2015 submission of the supplemental claim. So, under 38 C.F.R. § 3.155(d)(1)(i), July 17, 2015 would be the date of claim. While the September 2015 VA Form 21-526EZ lacked a signature, the Veteran was not notified of that defect. Under the facts of this case and in light of the veteran-friendly nature of the VA system, the Board finds that VA is estopped from treating the September 2015 VA Form 21-526EZ as incomplete. The PTSD claim was not adjudicated until the November 2017 rating decision which granted the claim. On these facts, the date of receipt of claim is July 17, 2015. The record establishes that the Veteran had PTSD by the date of his claim, so was entitled to benefits on that date. Therefore, entitlement to an effective date of July 17, 2015, for the grant of service connection for PTSD is granted. 2. Entitlement to an effective date earlier than September 18, 2017, for the grant of service connection for CAD The Veteran’s contentions, the essential facts, and the applicable law with respect to his claim of an earlier effective date for the grant of service connection for CAD are the same as those addressed above in connection with his claim of entitlement to an earlier effective date for the grant of service connection for PTSD, so will not be repeated at length here. The Veteran initially filed a claim of entitlement to service connection for CAD on July 17, 2015. The record establishes that the Veteran had CAD on that date and the other elements of his claim have been established as present on that date. Therefore, entitlement to an effective date of July 17, 2015, for the grant of service connection for CAD is granted. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kerry Hubers 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.