Citation Nr: 21032859 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 19-26 755 DATE: May 28, 2021 ORDER An effective date prior to October 2, 2009, for the award of service connection for residual gunshot wound of the right triceps is denied. An effective date prior to October 2, 2009, for the award of service connection for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is denied. An effective date prior to February 24, 2017, for the award of service connection for residuals scars of right leg wound and posterior back scar is denied. An effective date prior to February 24, 2017, for eligibility for Chapter 35 Dependents' Educational Assistance (DEA) benefits is denied. REMANDED Entitlement to an effective date prior to February 24, 2017, for the award of a 100 percent rating for PTSD with MDD. Entitlement to an effective date prior to February 24, 2017, for the award of a 40 percent rating for residual gunshot wound of the right triceps. FINDINGS OF FACT 1. On April 19, 1955, VA received the Veteran's original claim for service connection for residuals of gunshot wound to the right arm. 2. In a final July 1955 administrative decision, the Agency of Original Jurisdiction (AOJ) found that the Veteran's entire period of service from December 11, 1950, to May 27, 1954, was terminated under dishonorable conditions and, therefore, he was barred from receiving VA compensation benefits. 3. The Veteran did not file a formal or informal claim to reopen his previously denied claim for service connection for residuals of gunshot wound to the right arm after issuance of the final July 1955 rating decision and prior to the receipt of his formal claim on October 2, 2009. 4. The Veteran did not file a formal or informal claim for service connection for an acquired psychiatric disorder, to include PTSD, prior to the receipt of his original claim on October 2, 2009. 5. The Veteran did not file a formal or informal claim for service connection for residual scars of the right leg and posterior back prior to the receipt of his original claim on February 24, 2017. 6. The Veteran did not have a permanent total service-connected disability, or otherwise meet any of the basic eligibility requirements for Chapter 35 benefits, prior to February 24, 2017. CONCLUSIONS OF LAW 1. The July 1955 administrative decision that found that the Veteran's entire period of service from December 11, 1950, to May 27, 1954, was terminated under dishonorable conditions and, therefore, he was barred from receiving VA compensation benefits is final. 38 U.S.C. § 709 (1952); Veterans Regulation No. 2(a), Part II, Par. III; Department of Veterans Affairs Regulation 1008 (1955). 2. The criteria for an effective date prior to October 2, 2009, for the award of service connection for residual gunshot wound of the right triceps have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date prior to October 2, 2009, for the award of service connection for PTSD with MDD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date prior to February 24, 2017, for the award of service connection for residual scars of the right leg and posterior back have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for an effective date prior to February 24, 2017, for the award of basic eligibility to DEA benefits have not been met. 38 U.S.C. §§ 3501, 3510; 38 C.F.R. §§ 20.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 11, 1950, to December 10, 1953, which is considered honorable for VA purposes. He had an additional period of active duty from December 11, 1953, to May 27, 1954; however, such has been determined to be dishonorable for VA purposes and is a bar to VA benefits. See December 2017 Administrative Decision. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in January 2018 by a Department of Veterans Affairs (VA) Regional Office. In April 2021, the Veteran and his two daughters testified at a Board hearing before the undersigned Veterans Law Judge regarding the issues decided herein. A transcript of the hearing is associated with the record. At the Board hearing, the Veteran's representative argued that the December 2018 notice of disagreement (NOD) was intended to include disagreement with the propriety of the assigned effective date of February 24, 2017, for the awards of the 100 percent rating for PTSD with MDD and the 40 percent rating for the residual gunshot wound of the right triceps. However, as such issues have not yet been perfected for appeal, the Board has assumed jurisdiction of these claims for the limited purpose of remanding them for the issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Effective Date Claims The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "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). Specifically, under 38 C.F.R. § 3.400(q)(1)(ii), the effective date based on new and material evidence other than service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). Prior to March 24, 2015, 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. 38 C.F.R. § 3.155 (2014). Such informal claim must identify the benefit sought. 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. Id. As of March 24, 2015, VA no longer recognizes informal claims. In this regard, as of such date, a claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant's intent to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160(a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b). 1. Entitlement to an effective date prior to October 2, 2009, for the award of service connection for residual gunshot wound of the right triceps. The Veteran contends that an effective date prior to October 2, 2009, for the award of service connection for residual gunshot wound of the right triceps is warranted. Specifically, he claims that the effective date should be April 19, 1955, the date his original claim for service connection for such disorder was received. By way of background, VA received the Veteran's original claim for service connection for a gunshot wound to the right arm on April 19, 1955. However, in a July 1955 administrative decision, the AOJ found that the Veteran's entire period of service from December 11, 1950, to May 27, 1954, was terminated under dishonorable conditions and, therefore, he was barred from receiving VA compensation benefits. Thus, his claim for service connection for gunshot wound to the right arm was denied. Later that same month, the Veteran was advised of the decision and his appellate rights. However, he did not enter a NOD as to such decision. Further, no new and material evidence was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received that existed and had not been associated with the claims file when VA first decided the claim. Consequently, the July 1955 administrative decision is final. 38 U.S.C. § 709 (1952); Veterans Regulation No. 2(a), Part II, Par. III; Department of Veterans Affairs Regulation 1008 (1955). Thereafter, an October 1959 Army Board for Correction of Military Records (ABCMR) indicates that the Veteran requested that his bad conduct discharge be changed to a general discharge under honorable conditions. However, such request was denied in March 1960. The Veteran filed another application for correction of military or naval records in July 2009, but was informed in November 2009 that the ABCMR would not consider any further requests for reconsideration on the matter since the request for reconsideration was not received within one year of the ABCMR's original decision in March 1960. Nonetheless, on October 2, 2009, VA received the Veteran's application to reopen his previously denied claim of entitlement to service connection for gunshot wound to the right arm. In this regard, the Board notes that the Veteran did not file a formal or informal claim for service connection for gunshot wound to the right arm, or any claim for benefits for that matter, after issuance of the final July 1955 administration decision and prior to the receipt of his formal claim on October 2, 2009. Sellers v. Wilkie, 965 F.3d 1328 (2020) (holding that "a veteran's formal claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality"). However, in a December 2009 letter, the Veteran was advised that he was not eligible for VA compensation benefits as his period of service from December 11, 1950, to May 27, 1954, was previously determined to have been terminated under dishonorable conditions. Thereafter, in February 2017, the Veteran filed another application for correction of his military record and submitted a VA Form 21-526EZ (Fully Developed Claim), which included his claim for service connection for gunshot wound to his right arm. In a December 2017 administrative decision, the AOJ found that new and material evidence had been received as to the prior characterization of discharge determination. Specifically, the AOJ noted that the October 1959 ABCMR record indicated that the Veteran did in fact have 2 periods of service, one characterized as honorable and one characterized as bad conduct. In this regard, the AOJ explained that such record showed that the Veteran completed 2 years, 9 months, and 4 days of his original contract before reenlisting on October 24, 1953, and he had 3 years, 2 months, and 1 day of total good service. Thus, it concluded that the Veteran's discharge from the period of service from December 11, 1950, to December 10, 1953, was under honorable conditions for the purpose of eligibility for VA benefits, while his discharge from the period of service from December 11, 1953, to May 27, 1954, was under dishonorable conditions and barred from VA benefits. Thus, as his gunshot wound of the right triceps was incurred during his first period of honorable service, the AOJ awarded service connection for such disability as of October 2, 2009, the date of receipt of his application to reopen such claim following the final July 1955 decision. In this regard, the Board notes that the December 2017 administrative decision was based on mitigating circumstances related to the Veteran's service. It was not based on correction of military records by the service department or any other competent military authority. As such, the provisions of 38 C.F.R. § 3.400(g) are inapplicable. Moreover, while it was based, in part, on an October 1959 service department record received subsequent to the July 1955 administrative decision, the provisions of 38 C.F.R. § 3.156(c), which provides that, at any time after VA issues a decision on a claim, if it 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, are inapplicable as such record was not in existence at the time of the earlier decision. Additionally, while advised of the process of doing so at the April 2021 Board hearing, the Veteran has not filed a motion to reverse or revise the July 1955 administrative decision based on clear and unmistakable error. Furthermore, while the Veteran argues that service connection should be effective the date his injury occurred during service, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. Lalonde v. West, 12 Vet. App. 377, 382-383 (1999). Accordingly, the effective date of the award of service connection for residual gunshot wound of the right triceps can be no earlier than the date of receipt of the Veteran's application to reopen his previously denied claim. In this regard, the record clearly shows that, following the final administrative decision issued in July 1955, the earliest document that can be construed as a claim for compensation, whether formal or informal, was received on October 2, 2009, when the Veteran filed an application to reopen such previously denied claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Thus, an effective date prior to October 2, 2009, for the award of service connection for residual gunshot wound of the right triceps is not warranted and the Veteran's appeal must be denied. 2. Entitlement to an effective date prior to October 2, 2009, for the award of service connection for PTSD with MDD. 3. Entitlement to an effective date prior to February 24, 2017, for the award of service connection for residuals scars of right leg wound and posterior back scar. The Veteran contends that he is entitled to effective dates prior to October 2, 2009, for the award of service connection for PTSD with MDD, and prior to February 24, 2017, for the award of service connection for residuals scars of right leg wound and posterior back scar. However, as VA received his original claims for service connection for acquired psychiatric disorder on October 2, 2009, and for residuals scars of right leg wound and posterior back scar on February 24, 2017, earlier effective dates are not warranted. In this regard, on October 2, 2009, the Veteran's Application for Compensation (VA Form 21-526) was received, in which he claimed service connection for PTSD. Additionally, on February 24, 2017, the Veteran's Fully Developed Claim was received, in which he claimed service connection for residuals scars of right leg wound and posterior back scar. Thereafter, in the January 2018 rating decision, service connection for such claims were granted, effective October 2, 2009, and February 24, 2017, the dates VA received the Veteran's original claims for service connection for such disabilities. However, there is no document of record that can be construed as an informal or formal claim for service connection for such claims prior to October 2, 2009, and February 24, 2017, respectively. Furthermore, as previously noted, an effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. Lalonde, supra. Therefore, based on the laws and regulations previously cited, and after reviewing the totality of the evidence, the Board finds that an effective date prior to October 2, 2009, for the award of service connection for PTSD with MDD, and an effective date prior to February 24, 2017, for the award of service connection for residuals scars of right leg wound and posterior back scar are not warranted. Here, VA received the Veteran's original claims for service connection for such disorders on October 2, 2009, and February 24, 2017, respectively, and, as such, he has been afforded the earliest possible effective dates under the law. Thus, earlier effective dates for such awards are not warranted and the Veteran's appeal must be denied. 4. Entitlement to an effective date prior to February 24, 2017, for eligibility for Chapter 35 DEA benefits. The Veteran is seeking an earlier effective date for the eligibility to DEA benefits under Chapter 35. In this regard, Chapter 35 benefits, Survivors' and DEA, is a program of education or special restorative training that may be authorized for an eligible person, such as a child or surviving spouse, if the applicable criteria are met. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. §§ 21.3020, 21.3021. Basic eligibility for certification of Survivors' and DEA benefits exists if the veteran: (1) was discharged from service under conditions other than dishonorable, or died in service; and (2) has a permanent total service-connected disability; or (3) a permanent total service connected disability was in existence at the date of the veteran's death; or (4) died as a result of a service-connected disability; or, (5) if a serviceperson is on active duty as a member of the Armed forces and is, and, for a period of more than 90 days, has been listed by the Secretary concerned as missing in action, captured in line of duty by a hostile force, or forcibly detained or interned in line of duty by a foreign government or power. Service-connected disability or death must have been the result of active military, naval, or air service on or after April 21, 1898. 38 C.F.R. § 3.807. In a January 2018 rating decision, a 100 percent rating was granted for the Veteran's service-connected PTSD with MDD, effective February 24, 2017. Prior to February 24, 2017, the Veteran did not have a permanent and total service-connected disability, nor did he meet any of the other basic eligibility requirements. Accordingly, the criteria for basic eligibility for Chapter 35 benefits cannot pre-date February 24, 2017. Consequently, the Veteran's claim fails because of absence of legal merit or lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND 5. Entitlement to an effective date prior to February 24, 2017, for the award of a 100 percent rating for PTSD with MDD. 6. Entitlement to an effective date prior to February 24, 2017, for the award of a 40 percent rating for residual gunshot wound of the right triceps. In the January 2018 rating decision, the AOJ awarded service connection for PTSD with MDD with a noncompensable rating, effective October 2, 2009, and a 100 percent rating, effective February 24, 2017. Service connection for residual gunshot wound of the right triceps was also awarded with a noncompensable rating effective October 2, 2009, and a 40 percent rating, effective February 24, 2017. In December 2018, the Veteran's NOD was received wherein he reported that he disagreed with the date of the award and, as such, was seeking an earlier effective date. While the AOJ only construed such as a NOD with regard to the propriety of the effective dates of service connection, during the April 2021 Board hearing, the Veteran's representative argued that such also encompassed disagreement with the propriety of the effective dates of the increased ratings. Jarvis v. West, 12 Vet. App. 559, 561-62 (1999) (holding that VA must liberally construe all filings by a claimant, including any documents that may constitute an NOD); 38 C.F.R. § 20.202(a). Accordingly, when there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case. 38 C.F.R. § 19.26. Thus, a remand for issuance of a statement of the case as to such issues is necessary. Manlincon, supra. The matters are REMANDED for the following action: Provide the Veteran and his representative with a statement of the case regarding the issues of entitlement to an effective date prior to February 24, 2017, for the award of a 100 percent rating for PTSD with MDD and entitlement to an effective date prior to February 24, 2017, for the award of a 40 percent rating for residual gunshot wound of the right triceps, and notice of their appellate rights. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark, 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.