Citation Nr: 22010554 Decision Date: 02/24/22 Archive Date: 02/23/22 DOCKET NO. 16-04 384 DATE: February 24, 2022 ORDER Entitlement to an effective date earlier than August 26, 2013 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran's original claim for service connection for PTSD was received in November 2010 and subsequently was considered and denied by the local Regional Office (RO) in a November 2011 rating decision. 2. He did not file a Notice of Disagreement (NOD) in response to that earlier decision to initiate an appeal of that earlier denial of his claim; therefore, that November 2011 rating decision is a final and binding determination based on the evidence then of record. 3. He filed a petition to reopen his claim for service connection for PTSD on August 26, 2013, and, once later granted, that was effective date assigned. CONCLUSION OF LAW The criteria are not met for entitlement to an effective date earlier than August 26, 2013, for the grant of service connection for PTSD. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1984 to November 1999. In October 2021, in support of this claim for an earlier effective date for his award, the Veteran testified before the undersigned Veterans Law Judge of the Board during a "virtual" teleconference hearing. A transcript of the hearing is of record. In his hearing testimony, the Veteran argued that the effective date of his award should go back to when he first filed his claim in November 2010 because his service-connected short-term memory loss impaired his ability to act responsibly and timely in pursuing an appeal of his claim for PTSD. He says his multiple head injuries and consequent short-term memory loss impacted his judgment, comprehension, attention to detail, and memory providing good cause justification to vitiate the "finality" of the November 2011 rating decision initially considering and denying his claim. He believes it simply is unreasonable to expect him to have continued processing that initial claim when he simply could not, given those mitigating circumstances. At the time of the earlier decision, the Veteran was represented by the Disabled American Veterans (DAV) Service Organization, but he is maintaining it was ineffective representation. The representative he now has argued during the hearing that there was what amounted to a "sympathetically inferred" claim from earlier or mitigating factors to "finality", something amounting or tantamount to an NOD initiating a timely appeal of that earlier decision especially since, to reiterate, the Veteran had service-connected memory loss/attention deficit. The Board is certainly mindful of the unfortunate facts and circumstances of this case. However, the power to assign an earlier effective date for benefits based on a sense of justice or equity is beyond the Board's authority. See Shields v. Brown, 8 Vet. App. 346, 351 (1995) (holding that an earlier effective date for Dependency and Indemnity Compensation (DIC) benefits is not allowable under the doctrine of equitable estoppel because payment of government benefits must be authorized by statute). For reasons and bases that will be discussed, the Board finds that the existing effective date is correct according to the applicable statutes, VA regulations, and caselaw. There is no legal basis for granting any earlier effective date, especially absent the required filing of a timely NOD following the earlier (i.e., initial) denial of this claim. The effective date for an award of compensation based on an original claim 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. With respect to claims to reopen, an effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii); see also Jones v. Shinseki, 619 F.3d 1368, 1371 (Fed. Cir. 2010) (noting that, for an award based on a claim reopened after a final adjudication, the effective date is typically the date that the request to reopen was filed). There is no provision in either statute or VA regulations allowing for an earlier effective date based on a reopened claim unless a clear and unmistakable error (CUE) was committed in a prior decision or unless the new and material evidence resulted from receipt of additional relevant service department records. See 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.105, 3.156(c). Here, however, the Veteran's representative explicitly indicated during the October 2021 hearing before this Board that they are not alleging CUE in the earlier decision in question, and, in any event, so regardless, none otherwise is shown to have occurred. The Veteran's original claim of entitlement to service connection for PTSD was received in November 2010 and subsequently denied in a November 2011 rating decision. He did not file a NOD in response to that earlier decision to initiate an appeal of that initial denial of his claim; therefore, that November 2011 rating decision became final and binding based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. It was not until August 26, 2013, that the Veteran submitted a VA Form 21-526b, Supplemental Claim, requesting to reopen his claim for service connection for PTSD. His claim eventually was granted in a June 2014 RO rating decision with an effective date of August 26, 2013, the date he filed his petition to reopen the claim. When, as here, there was a prior, final and binding decision on the claim (which, here, was the RO's November 2011 rating decision earlier considering and denying this claim), the effective date of a subsequent award of service connection is the date of receipt of the reopened claim, not instead the date of receipt of the original claim. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). In Sears, the Court held that, "[t]hestatutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim."16 Vet. App. at 248. By law, with respect to claims to reopen, an effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii). The simple fact of the matter is that an NOD was not timely filed in response to the RO's earlier (initial) denial of this claim, and, to reiterate, there unfortunately is no legal authority or recourse to blindly forgive or overlook that failing. Moreover, as explained during the hearing before this Board, in designating the DAV as his earlier representative, that was the Veteran's personal choice and election, so he put his full faith and trust in that organization. If they did not do something they were entrusted to do, such as file a timely NOD or other necessary paperwork to contest that earlier denial of his claim, while indeed unfortunate, that inaction or failure is not legal grounds to now assign any earlier effective date as a result. Accordingly, the earliest possible effective date that is permissible by law for the eventual grant of service connection for PTSD is August 26, 2013, since, again, that is when the Veteran re-filed this claim (i.e., submitted the petition to reopen it in the way of a supplemental claim). As there is no legal entitlement to any earlier effective date, this appeal must be denied. The evidence for versus against this claim is not in "approximate" (nearly equal) balance to warrant invoking the benefit-of-the-doubt doctrine. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.