Citation Nr: 21012754 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 15-36 140 DATE: March 5, 2021 ORDER An effective date prior to April 27, 2012, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT No informal or formal claim for service connection for PTSD was received by VA prior to April 27, 2012. CONCLUSION OF LAW The criteria for an effective date prior to April 27, 2012, for the award of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1970 to May 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is of the hearing is associated with the record. In March 2019, the Board denied the claim on appeal, and the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Memorandum Decision, the Court vacated the March 2019 Board decision and remanded the issue for further appellate consideration. Entitlement to an effective date prior to April 27, 2012, for the award of service connection for PTSD. Generally, the effective date for an award of service connection and disability compensation is 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, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date 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. Prior to March 24, 2015, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. 38 C.F.R. § 3.151(a). An informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written and must identify the benefit being sought. Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. 38 C.F.R. § 3.155. The Veteran contends that he is entitled to an effective date prior to April 27, 2012, for the award of service connection for PTSD. Specifically, he asserts that the effective date should be April 29, 2011, the day he submitted his informal claim to his representative, Texas Veterans Commission (TVC), who he alleges, in turn, submitted it to VA. In the March 2019 decision, the Board found the record did not show that VA received an informal or formal claim for service connection for PTSD prior to April 27, 2012, and denied the Veteran’s claim for an earlier effective date. In support of such decision, the Board observed that the record reflected that he faxed a copy of such claim to TVC on April 29, 2011, and a computer screenshot showing TVC’s past communication with the Veteran indicated that he submitted his informal claim (and VA Form 21-22 (Appointment of Veterans Service Organization as Claimant’s Representative)) to them on that date, but there was no evidence that TVC submitted such claim to the VA on April 29, 2011, or any date prior to April 27, 2012. The Board also found that, while the Veteran reported that he had been informed that his file had been lost, the record reflects that such occurred in January 2008, well prior to the April 2011 date that he reports TVC filed his informal claim for service connection for PTSD on his behalf, and there was no indication that the Veteran’s file was lost, or paperwork was missing, at any point after January 2008. In the July 2020 Memorandum Decision, the Court found that the Board erred by failing to provide an adequate statement of reasons or bases for its decision as it found that the screenshot from TVC shows that the informal claim and VA Form 21-22 were forwarded to VA on April 29, 2011. However, the screenshot only states “Vet filed informal claim for SC benefits & submitted 21-22” on April 29, 2011, which appears to indicate that the Veteran submitted such documents to TVC, rather than TVC submitted such documents to VA. Such interpretation is further supported by the fact that the record contains a fax from the Veteran to TVC on April 29, 2011, which included VA Forms 21-4138 and 21-22 and a cover letter instructing TVC to “[p]lease process this for an Informal Award Date of May 1, 2011,” thus suggesting that they had not been filed with VA as of yet (i.e., for an anticipated informal award date of May 1, which is 2 days after April 29, the Veteran is assuming that claim would be filed with VA by such future date). Nonetheless, in light of the Court’s interpretation of such documentation, and the Veteran’s TVC representative indication at the July 2018 Board hearing that the annotation reflected that the Veteran’s documents were received and routed/ forwarded, the fact remains that such were not received by VA on April 29, 2011, or any date prior to April 27, 2012. In this regard, the screenshot does not reflect that the documents were in fact routed to VA and the Veteran’s representative’s argument that such were indeed routed/forwarded to VA is refuted by a subsequent entry that documents submittal of documents to VA. Specifically, on July 5, 2018, at 9:44 a.m. that reflects: “Rec’d by WRO/TVC from veteran; Personal Appearance Verification (I attend to appear) Submitted to [JG]. Signed 21-22 submitted to [JG] to walk to IPC for submission to VA.” (emphasis added). Thus, had TVC submitted the April 29, 2011, documents to VA, it would be reasonable to assume that such fact would be documented. Therefore, the Board finds that, while the evidence clearly shows that the Veteran submitted his informal claim for service connection for PTSD to TVC on April 29, 2011, there is no evidence that TVC submitted such claim to VA on his behalf, or that an informal or formal claim for service connection for PTSD was received by VA prior to April 27, 2012. Thus, while sympathetic to the Veteran’s claim, the Board is bound by VA’s laws and regulations governing the assignment of effective dates. In this regard, a service organization is not a division of VA, and communications to such are not communications to VA, and VA’s duty to undertake appropriate action with respect to a formal or informal claim does not arise until the claim has been submitted to VA. 38 U.S.C. § 5107(a). Further, VA is not responsible for the advice and actions of service organizations and there is no presumption that documents provided by an appellant to a service organization are, in fact, filed with VA. Brown v. Brown, 8 Vet. App. 40, 43 (1995). Consequently, as VA did not receive the Veteran’s claim for service connection for PTSD prior to April 27, 2012, the Board is precluded from assigning an earlier effective date for the award of service connection for such disability, and his claim must be denied. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.