Citation Nr: 21022370 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 18-08 142 DATE: April 15, 2021 ORDER Entitlement to an effective date earlier than June 24, 2015, for the grant of service connection for posttraumatic stress disorder (PTSD) with alcohol dependence (in full remission) is denied. Entitlement to an effective date earlier than June 24, 2015, for the grant of service connection for right foot degenerative arthritis status post crush trauma is denied. Entitlement to an effective date earlier than June 24, 2015, for the grant of service connection for right thigh crush trauma with hip tendonitis is denied. Entitlement to an effective date earlier than June 24, 2015, for the grant of service connection of right thigh limited flexion is denied. Entitlement to an effective date earlier than June 24, 2015, for the grant of service connection for right thigh, impairment of rotation, adduction, and/or abduction, is denied. Entitlement to an effective date earlier than June 24, 2015, for the grant of service connection for right lower extremity sciatica is denied. Entitlement to an effective date earlier than June 24, 2015, for service the grant of service connection for a back disability is denied. Entitlement to an effective date earlier than June 24, 2015, for the grant of entitlement to special monthly compensation (SMC) at the housebound rate is denied. FINDINGS OF FACT 1. More than 90 days have passed since the regional office (RO) received the appellant’s August 14, 2018, appeal of the July 2018 Appeals Modernization Act (AMA) decision in which he elected the “Evidence Submission” review opinion. 2. As a matter of law, the Board cannot consider any additional evidence added to the record since the running of the above 90-day period, to include the psychological evaluation received from Kristi A. Erickson, Ph.D., in December 2020 and any outstanding post-service VA and private medical records as well as retroactive medical opinions if the appeal was remanded for additional development. 3. Prior to an August 2016 administrative decision in which the RO changed the character of the appellant’s discharge to “honorable,” he did not have any qualifying service for VA compensation purposes. 4. In August 2015 the Veterans' Administration (VA) received service treatment records that were relevant official service department records that existed and had not been associated with the claims file at the time of the July 1965 administrative decision first denied claims of service connection for injuries arising out of a November 1961 accident to include a psychiatric disorder, a right foot disability, right thigh musculoskeletal and neurological disabilities, and a back disability. 5. The preponderance of the evidence shows that the appellant was not diagnosed post-service with PTSD, right foot degenerative arthritis status post crush trauma, right thigh crush trauma with hip tendonitis, right thigh limited flexion, right thigh, impairment of rotation, adduction or abduction, and right lower extremity sciatica until after June 24, 2015. 6. The preponderance of the evidence shows that the claimant’s post-service back disability was not medically linked to a disease or injury while on active duty until after June 24, 2015. 7. The preponderance of the evidence shows that the appellant did not meet the criteria for SMC at the housebound rate until after June 24, 2015. CONCLUSION OF LAW The criteria for an effective date earlier than June 24, 2015, for the grant of service connection for PTSD, right foot degenerative arthritis status post crush trauma, right thigh crush trauma with hip tendonitis, right thigh limited flexion, right thigh, impairment of rotation, adduction and/or abduction, and right lower extremity sciatica, and a back disability as well as for the grant of entitlement to SMC at the housebound rate have not been met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1114, 1131, 1155, 5101, 5110, 7104, 7105; 38 C.F.R. §§ 3.1(p), 3.12, 3.102, 3.104, 3.151, 3.155, 3.156, 3.157, 3.303, 3.304, 3.307, 3.309, 3.321, 3.326, 3.400, 3.351, 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The claimant served in the United States Navy from April 1961 to September 1964. While the appellant was discharged Under Other Than Honorable Conditions due to a special court martial, in an August 2016 administrative decision the RO changed the character of his discharge to “honorable.” Next, it is important to understand that this appeal is being adjudicated under the AMA review system and this has implications on the Board’s adjudication of his appeal. See 84 Fed. Reg. 138 (Jan. 18, 2019) (codified at 38 C.F.R. § 20.300 to 38 C.F.R. § 20.303). Specifically, the record shows that in April 2018 the RO received the appellant’s election to have his earlier effective date claims adjudicated under the AMA. Id. In this regard, the appellant in April 2018 selected the Higher-Level Review lane when he opted into the AMA review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. A July 2018 AMA rating decision thereafter adjudicating and denied all of the above earlier effective date claims. In this regard, the July 2018 AMA rating decision made only the one favorable finding as to each of the earlier effective date claims: An intent to file was received on June 24, 2016. The Board is bound by this finding. Id. On August 14, 2018, the RO received the appellant’s timely appeal of the July 2018 AMA rating decision to the Board. At that time, the appellant elected the “Evidence Submission” review opinion which gave him 90-days from the date the RO received his appeal to file additional evidence with VA. See 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (codified at 38 C.F.R. § 20.303). In a December 2018 decision, the Board denied the above earlier effective date claims. The claimant appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In this regard, there is an issue the Board must address. In a subsequent July 2019 order, which incorporated the parties of Joint Motion for Remand (JMR1), the Court vacated and remanded the December 2018 Board decision. The Board has reached this conclusion because the last paragraph of the JMR (“WHEREFORE, the parties respectfully request that the Court vacate the December 7, 2018, Board decision and remand the matter for action consistent with the foregoing”) encompassed all eight (8) issues adjudicated by the Board in December 2018. Citation to the missing eighth claim at points appears to have been an oversight. In a December 2019 decision, the Board again denied the above earlier effective date claims and the Veteran again appealed to the Court. In a subsequent September 2020 order, which incorporated the parties of Joint Motion for Remand (JMR2), the Court vacated and remanded the December 2019 Board decision. Initially, the Board notes that the Veteran has been in receipt of a combined 100 percent rating for his many service-connected disabilities along with SMC at the housebound rate at all times since June 24, 2015. Therefore, the Board notes the sole purpose of this appeal and the repeated appeals to the Court is for the Veteran and his representative to obtain retroactive payment of VA disability benefits. The AMA Restrictions on Considering New Evidence and Undertaking Additional Development As noted above, on August 14, 2018, the RO received the appellant’s timely appeal of the July 2018 AMA rating decision to the Board. At this time, the appellant elected the “Evidence Submission” review opinion which gave him 90-days from the date the RO received his August 14, 2018, appeal to file additional evidence with VA. As noted above, under the AMA the Board may not consider any evidence that is added to the claims file during a period of time when new evidence was not allowed. See 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (codified at 38 C.F.R. § 20.303). The AMA was passed by Congress and may not be disregarded by the Board. In this regard, the Board notes that in October 2018 claimant’s attorney filed with VA a Brief in support of the appellant’s claims with duplicate service treatment and personnel records and in December 2020 he filed with VA another Brief in support of the appellant’s claims with a psychological evaluation from a Dr. Erickson. However, given the AMA regulations governing this appeal, while the Board may consider the October 2018 and December 2020 Briefs as well as the duplicate service treatment and personnel records when adjudicating the appeal, it cannot consider Dr. Erickson’s December 2020 psychological evaluation because it was received by VA outside the 90-day window the appellant had to file additional evidence. Id. Likewise, since that 90-day period has run the Board finds no useful purpose can be served by remanding the appeal for additional development, to include requesting any outstanding pertinent post-service VA and private medical records (assuming they exist which, based on a detailed review of the evidence, they do not). The Board has reached this conclusion because it cannot consider such evidence when adjudicating the current appeal, under the AMA. Id. Simply stated, the Board must adjudicate these claims, fully, at this time, based on the current evidence. However, if the appellant or his representative believes that there are both new and relevant missing post-service medical evidence records that have not been associated with the claims file or wishes for VA to consider Dr. Erickson’s December 2020 psychological evaluation, either may file with the RO a Supplemental Claim and submit or identify this evidence. See 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (codified at 38 C.F.R. § 3.2501). If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. The Claims The appellant claims, in substance, and as noted in the JMR1 and/or the JMR2 that he is entitled to service connection for PTSD, right foot degenerative arthritis status post crush trauma, right thigh crush trauma with hip tendonitis, right thigh limited flexion, right thigh, impairment of rotation, adduction or abduction, and right lower extremity sciatica, and a back disability as well as for the grant of entitlement to SMC at the housebound rate since his September 1964 separation from service since he filed his initial claim for these benefits within one year of his separation from service (i.e., May 1965), the July 1965 rating decision is not final because of the new service treatment records that were associated with the claims file in August 2015, and he met the criteria for service connection as well as SMC in and since service. Additionally, and as noted in the JMR2, the appellant claims he is entitled to an earlier effective date for all the issues on appeal since his September 1964 separation from service because the Under Other Than Honorable Conditions due to a special court martial is not a bar to VA compensation prior to the August 2016 administrative decision determining that appellant’s discharge is considered honorable under 38 C.F.R. § 3.12(c)(6). Likewise, and as noted in the JMR2, the appellant claims he is entitled to an earlier effective date for service connection for PTSD, right foot degenerative arthritis status post crush trauma, right thigh crush trauma with hip tendonitis, right thigh limited flexion, right thigh, impairment of rotation, adduction and abduction, and right lower extremity sciatica because private treatment records date the onset of his PTSD to service (see private PTSD Disability Benefits Questionnaire signed June 15, 2015, and received by VA on July 6, 2015) or 2010 (see letter from Dr. Christine Mayerchak dated February 11, 2015, and received by VA on September 9, 2015) and not to June 2015 as earlier opined by the Board and because the June 2017 VA examiner documented the Veteran’s reports that right foot degenerative arthritis status post crush trauma, right thigh crush trauma with hip tendonitis, right thigh limited flexion, right thigh, impairment of rotation, adduction and abduction, and right lower extremity sciatica started after in-service injuries in 1962, continuing since that time, and the examiner opined that the foot and thigh conditions are at least as likely as not incurred in or caused by an injury in service. Similarly, and as noted in the JMR2, the appellant claims he is entitled to an earlier effective date for service connection for a back disability because the June 2017 VA examiner cited to an earlier nexus opinion when it noted that “an April 1965 …[post-service treatment record documented his]… complaints of severe low back pain and ‘attribute[d] the pain to the injury in 1961 as the veteran had been experiencing back pain on and off since the injury of 1961.’” The Board finds the Veteran’s claims lack all merit. No Qualifying Service Prior to the August 2016 Administrative Decision Also as noted above, in September 1964 the appellant was discharged Under Other Than Honorable Conditions due to a special court martial. In an August 2016 administrative decision, the RO changed the character of the appellant’s discharge to “honorable.” See 38 C.F.R. § 3.12(c)(6)(ii). Under the relevant law, “[a] person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of veteran.” See Holmes v. Brown, 10 Vet. App. 38, 40 (1997) (citing Aguilar v. Derwinski, 2 Vet. App. 21 (1991) (holding that, before applying for benefits, person must demonstrate by preponderance of evidence qualifying service and character of discharge)). The term “veteran” means a person who served on active duty and who was discharged or released there from under conditions other than dishonorable. 38 U.S.C. § 101(2), (18), (21), (24); 38 C.F.R. § 3.12(a). A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to certain VA benefits other than insurance. Id. Applicable laws and regulations provide that most VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. Id. The Board also notes that is bound by the laws enacted by Congress (particularly the AMA), the regulations of the Department, the instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department. See 38 U.S.C. § 7104(c). Moreover, where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In this regard, the Board notes that the Veteran’s representative in the JMR2 reported that nothing in 38 C.F.R. § 3.12(c)(6) barred the appellant from being granted an earlier effective date for service connection and VA Compensation Service agreed with this position. This theory, it appears, formed, in part, the basis for the Court vacating and remanding the December 2019 Board decision. However, the Board finds that the Veteran’s representative in the JMR2 failed to adequately recognize the VA laws and regulations which are dictating the Board’s findings in this part of the decision. In this regard, the Board is not saying herein that 38 C.F.R. § 3.12(c)(6) bars the appellant from being granted an earlier effective date for service connection. What the Board is saying is that 38 U.S.C. §§ 101(2), (18), (21), (24), 7104(c); 38 C.F.R. § 3.12(a), when taken together, clearly place the Board and VA on notice that an appellant cannot receive VA compensation before he has qualifying service. Moreover, the Board can find nothing in the above laws and regulations, nor in any decision issued by the Court or the United States Court of Appeals for the Federal Circuit, which allows an appellant to receive VA compensation before he had qualifying service. Tellingly, regardless of the harm, if any, that may befall a claimant by VA applying its laws and regulations governing appealing a rating decision, the Board finds that it must apply “the law as it exists, and cannot ‘extend... benefits out of sympathy for a particular [claimant].’” See Owings v. Brown, 8 Vet. App. 17, 23 (1995), quoting Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992). In fact, the Board notes that federal laws authorizing monetary benefits are enacted by Congress, and, unless an individual meets all of the requirements of a particular law, he or she is not entitled to the benefit; indeed the benefit cannot be awarded, regardless of the circumstances. See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990); Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994). Indeed, the Supreme Court of the United States, in Richmond, went so far as to point out that “[i]t is a federal crime, punishable by fine and imprisonment, for any Government officer or employee to knowingly spend money in excess of that appropriated by Congress.” Richmond, 110 S. Ct. at 2474. Therefore, because the record shows that the appellant did not have any qualifying service for VA compensation purposes until the August 2016 administrative decision changed the character of his discharge to “honorable,” the Board finds that he was not entitled to VA compensation benefits prior to August 2016. See 38 U.S.C. § 101(2), (18), (21), (24), 7104(c); 38 C.F.R. § 3.12(a); Holmes, supra; Soria, supra. Given the above facts, while the Board cannot find a legal bases for the RO having granted the appellant June 24, 2015, effective dates, it also cannot find a legal basis for granting earlier effective dates because he was not entitled to VA compensation benefits prior to August 2016. Id. Therefore, the earlier effective date claims are denied. In this regard, it is imperative for the Veteran to understand that not all the evidence in this case supports the current compensation levels and effective dates (the Veteran was clearly given every consideration in the granting of his claims). These issues are not before the Board. No Finality in the July 1965 Decision Notwithstanding the above finding that the appellant was not entitled to VA compensation benefits earlier than on or after the time the August 2016 administrative decision changing the character of the appellant’s discharge to “honorable,” to avoid further litigation in this matter, the Board will next consider whether the July 1965 administrative decision is final, taking into account the concerns raised by the JMR1, JMR2, and 38 C.F.R. § 3.156(c). The Board believes it must address the concerns of the parties to the JMRs to fully address this case. In this regard, 38 C.F.R. § 3.156(c) provides, in part, as follows: (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding [38 C.F.R. § 3.156 (a)]. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of [38 C.F.R. § 3.156 (c)] are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. Moreover, and as noted in the JMR1, in August 2015 VA received service treatment records that were not of record at the time the July 1965 administrative decision first denied the claims of service connection for injuries arising out of a November 1961 accident to include a psychiatric disorder, a right foot disability, right thigh musculoskeletal and neurological disabilities, and a back disability. Moreover, the Board finds that these service treatment records are relevant official service department records because they documented the appellant’s complaints, diagnoses, or treatment for injuries arising out of a November 1961 accident in which he was run over by an aircraft on the flight deck, to include a psychiatric disorder, a right foot disability, right thigh musculoskeletal and neurological disabilities, and a back disability. See, e.g., service treatment records dated in November 1961, September 1962, May 1964, and August 1964. Therefore, if it was not for the appellant being barred from receiving VA compensation benefits until on or after the August 2016 administrative decision changing the character of the appellant’s discharge to “honorable,” the Board would find that the July 1965 administrative decision is not final because of the service treatment records that were received in August 2015 and the appellant’s May 1965 claim has to be reviewed on a de novo basis. See 38 C.F.R. § 3.156(c). The Merits of the Effective Date Claims Notwithstanding the fact that the appellant is barred from receiving VA compensation benefits until on or after the August 2016 administrative decision changing the character of the appellant’s discharge to “honorable,” the Board will next consider his earlier effective date claims as if the clams have been pending since he filed his May 1965 claim because, as explained above, the July 1965 administrative decision is not final because relevant official service department records were received after the RO issued the decision. See 38 C.F.R. § 3.156(c). Again, the Board does this to avoid any further litigation. In this regard, the effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). Furthermore, 38 C.F.R. § 3.156(c) provides, in part, as follows: (3) An award made based all or in part on the records identified by [38 C.F.R. § 3.156 (c)(1)] is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. (4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). As to claims filed before March 24, 2015, the term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Before March 24, 2015, the term “claim” or “application” meant a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a clamant or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. In this regard, it is well settled that intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing). Upon receipt of an informal claim, if a 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 clamant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98 (Sept. 23, 1998), General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. The Service Connection Earlier Effective Date Claims As to the claims for effective dates earlier than June 24, 2015, for service connection for PTSD, right foot degenerative arthritis status post crush trauma, right thigh crush trauma with hip tendonitis, right thigh limited flexion, right thigh, impairment of rotation, adduction or abduction, and right lower extremity sciatica, and a back disability, as explained above, the appellant’s claims have been pending since May 1965. Therefore, since the effective date of an award of compensation based on an original claim, is the date of receipt of the claim, or the date entitlement arose, whichever is later, the remaining question for the Board to consider is when did entitlement arise for the appellant’s service connection claims. See 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(c)(3), 3.400. In this regard, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309; Hickson v. West, 12 Vet. App. 247, 253 (1999). In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Regulations also provide that a grant of service connection for PTSD requires the following: (i) if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor; (ii) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (iii) medical evidence establishing a link between current symptoms and an in-service stressor; and (iv) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran’s symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran’s service, a veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. “[F]ear of hostile military or terrorist activity” means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39,843 (Jul. 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). i. PTSD, Right Foot and Right Thigh Disabilities, and Right Lower Extremity Sciatica As to the claims of service connection for PTSD as well as right foot degenerative arthritis status post crush trauma, right thigh crush trauma with hip tendonitis, right thigh limited flexion, right thigh, impairment of rotation, adduction or abduction (collectively right foot and right thigh disabilities) and right lower extremity sciatica, the first question for the Board to consider is when the Veteran was first diagnosed with the disabilities because a diagnosis is a condition precedent for establishing service connection. See 38 C.F.R. §§ 3.303, 3.304; Hickson, supra. In this regard, the Board notes that 38 C.F.R. § 3.157 provides that private treatment records are only considered in VA’s possession on date received by the RO and VA medical records are considered in VA’s possession on date created. Next, and as noted in the JMR2, the private PTSD Disability Benefits Questionnaire signed June 15, 2015, and received by VA on July 6, 2015, included an opinion that the Veteran “developed PTSD following accident in Navy in 1962.” Likewise, the JMR2 noted that a letter from Dr. Mayerchak dated February 11, 2015, and received by VA on September 9, 2015, reported that she had provided therapeutic treatment to Veteran “‘beginning July 29, 2010’ and, at that time, ‘the diagnosis was 309.81 Post Traumatic Stress Disorder.’” The Board also notes that treatment records from Health Wellness Center dated in January 30, 2013, and March 11, 2013, and received by VA on January 20, 2016, show the Veteran being diagnosed with PTSD. Lastly, and notwithstanding the fact that the Board’s consideration of Dr. Ericson’s December 10, 2020, psychological evaluation received on December 17, 2020, is barred by the AMA, the Board notes that it places the onset of the Veteran’s disability back to his 1965 claim for VA benefits. However, notwithstanding the fact that the private PTSD Disability Benefits Questionnaire received on July 6, 2015, dates the onset of the Veteran’s PTSD to 1962, the Board finds that in the context of this earlier effective date claim the first time that the post-service record shows the clamant being diagnosed with PTSD is on July 6, 2015, because this is the date that VA received the private PTSD Disability Benefits Questionnaire. See 38 C.F.R. § 3.157. In other words, VA laws and regulations governing earlier effective date claims look at the date that the private treatment record was first received by VA as the date that the diagnosis is found in the record regardless of when it states that the disability first arose. Id. (Parenthetically, the Board notes that this is not the case in claims for increased ratings. See, e.g., Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014).) In this regard, the Board finds that Dr. Mayerchak’s letter received on September 9, 2015, treatment records from Health Wellness Center received on January 20, 2016, and Dr. Ericson’s psychological evaluation received on December 17, 2020, are of even less help to the Veteran in establishing an earlier diagnosis of PTSD despite their dating his diagnosis back to 2010, 2013, and 1965, respectively, because these private treatment records were not received until September 2015, January 2016, and December 2020, respectively, decades after service. Id. As to the claims of service connection for right foot and right thigh disabilities as well as right lower extremity sciatica as noted in the JMR2, the June 22, 2017, VA examiner, after for the first time diagnosing the Veteran with each of these disabilities, also repeated the appellant’s reports that these problems started after in-service injuries in 1962, they continued since that time, and opined that they are at least as likely as not incurred in or caused by an injury in service. In this regard, the Board again finds that in the context of these earlier effective date claims the first time that the post-service record shows the clamant being diagnosed with right foot and right thigh disabilities as well as right lower extremity sciatica is on June 22, 2017, because this is the date that the Veteran was seen for the VA examination. See 38 C.F.R. § 3.157. In other words, the Board finds that the VA examiner, like the above private examiners, cannot establish an earlier date for when the Veteran was first diagnosed with these disorders simply by reporting they started back in 1962. It is essential for both the Veteran, and to an extent the Veteran’s Court, to recognize that retroactive medical opinions, based on normally highly restricted information, is habitually of dubious probative value to the Board based on the objective medical evidence in the case. Efforts by the Board, sometimes at the order of the Court, to obtain such opinions from objective and highly reputable medical providers have to a great extent failed, with the experts unambiguously indicating that they cannot provide such opinions without grossly speculating. Instead, VA requires medical records documenting the diagnosis and these medical records appearing in the claims file at an earlier date for a private treatment record or generated at an earlier date for a VA treatment record. The Board also finds that the clamant is not competent to provide earlier diagnoses because he does not have the required medical expertise to provide an answer to this complex medical question. See Davidson, supra. Given the fact that claims of service connection requires the claimant to have “a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim” (see McClain, supra), the Board finds that entitlement did not arise for PTSD until on or after it was first diagnosed on July 6, 2015, and entitlement did not arise for right foot and right thigh disabilities as well as right lower extremity sciatica until on or after they were first diagnosed on June 22, 2017, even though the records diagnosing the disorders place there onset at earlier points in time. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304; Hickson, supra. As noted above, the effective date of an award of disability compensation is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. §§ 3.156(c)(3), 3.400(b)(2). Moreover, in the current appeal, entitlement to service connection for PTSD, right foot and right thigh disabilities as well as right lower extremity sciatica did not arise until after June 24, 2015, because the record does not show the clamant being diagnosed with PTSD until July 6, 2015, and right foot and right thigh disabilities as well as right lower extremity sciatica until June 22, 2017. The Board cannot grant service connection for problems to 1965 that may not have existed at that time without VA medical records dated in 1965 and/or private treatment records received in 1965. See 38 C.F.R. § 3.157. The Board also cannot speculate as to either when these problems began, or the nature and extent of the problems (if any) going back more than 50 years. In this regard, the existence of some of these problems in the 1960’s, 1970’s, 1980’s, and 1990’s is in serious question. Therefore, notwithstanding the fact that the appellant is barred from receiving VA compensation benefits until on or after the August 2016 administrative decision changing the character of the appellant’s discharge to “honorable,” the Board must also deny the claims for earlier effective dates for PTSD, right foot and right thigh disabilities as well as right lower extremity sciatica despite the claims being open since May 1965 because entitlement to service connection for these disabilities did not arise prior to June 24, 2015, because he did not have the required diagnoses to after that time. See 38 U.S.C. § 5110; 38 C.F.R. §§ 3.157, 3.400. ii. The Back Disability As to the claim of service connection for a back disability, the first question for the Board to consider is when the record first contains competent and credible evidence linking the Veteran’s post-service disability to his military service. See 38 C.F.R. § 3.303; Hickson, supra. In this regard, and as noted by the JMR2, the June 2017 VA examiner noted that “an April 1965 [Certificate of Attending Physician] …[post-service treatment record documented his]… complaints of severe low back pain and ‘attribute[d] the pain to the injury in 1961 as the veteran had been experiencing back pain on and off since the injury of 1961.’” However, the Board does not find the June 2017 VA examiner’s citation to the April 1965 Certificate of Attending Physician nor the April 1965 Certificate of Attending Physician itself provides the needed medical link (i.e., nexus) to grant service connection any earlier than date of the June 22, 2017, VA examination. See Owens, supra. The Board has reached this conclusion because, as noted above, the date that the VA examination was generated with its’ nexus opinion (i.e., June 22, 2017), is the date that VA was first placed on notice of the opinion. See 38 C.F.R. § 3.157. The Board has also reached this conclusion because it finds that, while the June 2017 VA examiner relied, at least in part, on the April 1965 Certificate of Attending Physician to provide the Veteran with a nexus opinion, the April 1965 Certificate of Attending Physician standing alone does not provide competent and credible medical evidence of a nexus between the post-serve back disability and military service. The Board has reached this conclusion because that physician never specifically opinions that the Veteran’s post-service back disability diagnosed as a herniated L4 disc is due to military service. See Owens, supra. The Board also finds that the April 1965 Certificate of Attending Physician standing alone does not provide competent and credible medical evidence of a nexus between the post-serve back disability and military service because the medical history provided by the Veteran and relied upon by the physician is not accurate. Specifically, while the Veteran told this physician that “[h]is right leg was ‘broken in five places, thigh was mangled and lacerated,’” service treatment records only show that the appellant’s accident resulted in a simple fracture of the left calcis anterior superior segment and dislocations of the first and second metatarsal-tarsal as well as the cuboid calcaneous. See service treatment records dated in November 1961. There are serious issues in this case regarding the Veteran’s recollection of events from over 50 years ago (which is understandable, but a detailed review of the record clearly indicates that the Veteran is not always an accurate historian of his problems). Service treatment records also specifically state that X-rays of the right femur where negative for a fracture. Id. In this regard, the Court has held that a medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Also see Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Additionally, the Board finds that the record does not contain any medical opinion linking the Veteran’s back disability to his military service until the time he was seen by the VA examiner on June 22, 2017. Therefore, the Board finds that the post-service record does not contain competent and credible evidence of a nexus between the post-serve herniated disc diagnosed in the April 1965 Certificate of Attending Physician, and received by VA on June 9, 1965, to the November 1961 accident in which he was run over by an aircraft on the flight deck while on active duty until the time of the June 22, 2017, VA examination. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(d). The Board also finds that the clamant is not competent to provide an earlier nexus opinion because he does not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused his current back disability). See Davidson, supra. Given the fact that a claim of service connection requires medical evidence of a nexus between the post-serve disease or injury and military service (see Hickson, supra), the Board finds that entitlement did not arise for a back disability until the June 22, 2017, VA examiner provided this nexus opinion. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304; Hickson, supra. As noted above, the effective date of an award of disability compensation is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. §§ 3.156(c)(3), 3.400(b)(2). Moreover, in the current appeal, entitlement to service connection a back disability did not arise until after June 24, 2015, because the record does not show a nexus to service until June 22, 2017. Therefore, notwithstanding the fact that the appellant is barred from receiving VA compensation benefits until on or after the August 2016 administrative decision changing the character of his discharge to “honorable,” the Board must also deny the claim for an earlier effective date for a back disability despite the claim being open since May 1965 because entitlement to service connection for this disability did not arise prior to June 24, 2015. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Again, the Board cannot speculate as to either when this problem began and, in this issue more importantly, the nature and extent of the problem (if any) going back more than 50 years. In this regard, it is imperative for the Veteran to understand that not all evidence in this case supports the granting of service connection for some of these problems, let alone an earlier effective date for the award of service connection for the problems to 1965, more than 55 years ago. The SMC Earlier Effective Date Claim Since the effective date of an award of compensation based on an original claim, is the date of receipt of the claim, or the date entitlement arose, whichever is later, the remaining question for the Board to consider is when did entitlement arise for SMC at the housebound rate. See 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(c)(4), 3.400. In this regard, increased compensation benefits are payable to a claimant if has a single permanent disability rated 100 percent disabling and has either additional service-connected disability or disabilities independently ratable at 60 percent or more or is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.351(d). As explained above, the clamant did not meet the criteria for service connection for any of his service-connected disabilities until on or after June 24, 2015. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.351(d). Also as noted above, the effective date of an award of disability compensation is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. §§ 3.156(c)(4), 3.400(b)(2). Therefore, the Board finds that entitlement to SMC at the housebound rate did not arise until on or after June 24, 2015, because the record does not show the appellant met the regulatory requirement until June 24, 2015. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.351(d). Accordingly, notwithstanding the fact that the appellant is barred from receiving VA compensation benefits until on or after the August 2016 administrative decision changed the character of the appellant’s discharge to “honorable,” the Board must also deny the claim for earlier effective date for SMC at the housebound rate despite the claim being open since May 1965 because entitlement to SMC at the housebound rate did not arise prior to June 24, 2015. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Conclusion In reaching the above conclusions, the Board has not overlooked the fact that the record does not contain post-service treatment records dated from approximately August 1965 to April 2010 (it should be noted for the record that there is no indication that such evidence exists). However, as noted above, given the claimant’s AMA election the Board is barred from considering any evidence it may obtain if it remanded the appeal for additional development, to include requesting any outstanding post-service medical records. See 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (codified at 38 C.F.R. § 20.303). In reaching the above conclusions, the Board has also not overlooked the fact that in December 2020 the Veteran’s representative filed with the Board a psychological evaluation from Dr. Erickson. However, given the AMA election, the Board cannot consider this evaluation when adjudicating the appeal. Id. Moreover, and as explained above, even if the Board considered Dr. Erickson’s evaluation when adjudicating the claim for an earlier effective date for service connection for PTSD, it does not provide an earlier date for the first diagnosis of PTSD found in the record. The Board has reached this conclusion because, as explained above, as a private treatment record it is only considered in VA’s possession on the date received (i.e., on December 17, 2020) (see 38 C.F.R. § 3.157) and therefore it cannot provide a diagnosis of PTSD earlier than December 17, 2020, even though it dates the onset of the Veteran’s PTSD to 1965; the record already shows the Veteran being diagnosed with PTSD since July 6, 2015; and the RO already granted service connection for PTSD effective June 24, 2015. In reaching the above conclusions, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claims, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.