Citation Nr: 21031971 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-20 163 DATE: May 25, 2021 ORDER Entitlement to an effective date of October 9, 2009, for the grant of service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to an effective date of October 9, 2009, for the grant of service connection for hearing loss is granted. Entitlement of an effective date of October 9, 2009, for the grant of service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is in equipoise on whether the Veteran filed a claim for service connection for PTSD, hearing loss, and tinnitus in September 2009 at a Department of Defense Yellow Ribbon event. 2. The Veteran's last day of active service was October 8, 2009. CONCLUSION OF LAW 1. The criteria for entitlement to an effective date of October 9, 2009, for the grant of service connection for PTSD, hearing loss, and tinnitus have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1987 to February 1990, July 2002 to April 2003, and September 2008 to October 2009. The Veteran has additional service in the National Guard. These matters return to the Board from a September 2020 Memorandum decision of the Court of Appeals for Veterans Claims (Court), which vacated a February 2019 Board decision that denied the Veteran's claims for earlier effective dates. Effective Date 1. Entitlement to an effective date of October 9, 2009, for the grant of service connection for posttraumatic stress disorder 2. Entitlement to an effective date of October 9, 2009, for the grant of service connection for hearing loss 3. Entitlement of an effective date of October 9, 2009, for the effective date of the grant of service connection for tinnitus The Veteran contends that he filed an application for PTSD, hearing loss, tinnitus, and a heart murmur in September 2009 when he, and other soldiers from his unit, attended a mandatory Department of Defense (DoD) "Yellow Ribbon" event after their return from deployment. The primary issue in this case has been that this application does not appear to be in the claims file. The Veteran contends that this is the fault of VA and that he did apply at this event for disability benefits. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date for an award of service connection 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, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. A specific claim in the form prescribed by VA 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) (previously 38 U.S.C. § 3001(a)); 38 C.F.R. § 3.151(a). Prior to 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. 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. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Considering the evidence of record, and affording the Veteran all reasonable doubt, the Board finds the Veteran is entitled to an effective date of October 9, 2009. The issue was previously denied by the Board in February 2019, based primarily on the absence of an application for benefits from September 2009 in the claims file. The Veteran appealed this decision, and in September 2020, the Court vacated the Board's denial. The Court indicated the Board had mischaracterized the "Yellow Ribbon" event as one hosted by the VA for information about education benefits, despite the existence of another "Yellow Ribbon" program that is a DoD venture with mandatory events for Veterans to gain information and provide them an opportunity to apply for disability benefits. The Veteran has consistently reiterated that he filed a claim in September 2009 at a mandatory Yellow Ribbon event at the Philadelphia regional office. In support of this claim, the Veteran submitted two statements from fellow soldiers who were in his unit and attended the same event, which assert that the Veteran filed a claim for disability benefits at the September 2009 event. In further support of his claim, the Veteran points to a July 2010 VA request for his service records, arguing this request must have been made in response to his September 2009 claim for benefits. The Veteran also contends that some regional offices, including the Philadelphia Regional Office, were found to be mishandling documentation from veterans, which is a potential reason his 2009 claim is not of record. The Board finds the statements from the Veteran and his fellow soldiers to be competent and credible regarding the Yellow Ribbon event they attended in September 2009. The description of the event is more aligned with the DoD Yellow Ribbon program than the VA's Yellow Ribbon Program. As such, the Board finds it reasonable that the Veteran filed a claim for benefits at this event, as reported by himself and two other people. The Board is further persuaded by the records request made by the VA less than a year after the Veteran states he filed a claim. For these reasons, the Board finds the evidence to be in equipoise on whether the Veteran filed a claim in September 2009 for service connection for PTSD, hearing loss, and tinnitus. The effective date for an award of service connection 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, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2). While the Veteran states his effective date should be September 2009, the date of his original claim, the Board notes that the Veteran's last day of active service was October 8, 2009. As noted above, the effective date for an award of service connection 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. As such, the Board finds that the appropriate date for the awards of service connection for PTSD, hearing loss, and tinnitus is October 9, 2009, the day after the Veteran's last day of active service. N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.