Citation Nr: 22015597 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 14-38 899A DATE: March 18, 2022 ORDER Entitlement to an effective date earlier than August 20, 2009, for entitlement to service connection for posttraumatic stress disorder (PTSD), is denied. FINDING OF FACT The record contains no document that can be construed as a formal or informal claim for service connection for PTSD prior to August 20, 2009. CONCLUSION OF LAW The criteria for an effective date earlier than August 20, 2009, for entitlement to service connection for PTSD, have not been met. 38 U.S.C. §§ 1110, 5107, 5110; 38 C.F.R. §§ 3.114, 3.307, 3.40. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in September 2018, at which time the claim was denied. The Veteran appealed the matter to the Court of Appeals for Veterans' Claims (Court) which, pursuant to a Joint Motion for Remand (JMR) vacated the Board's decision and returned the matter to the Board, which remanded the matter for development in December 2019 and again in December 2020. It returns now for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Earlier Effective Date for Service Connection for PTSD The effective date for the award of service connection for a disease or injury is the day following separation from active duty, or the date entitlement arose, if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 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; 38 C.F.R. § 3.400. The Board notes that VA amended its regulations on March 24, 2015 to require that claims be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Prior to March 24, 2015, VA recognized formal and informal claims. A formal claim was one that had been filed on a form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant could be considered an informal claim. Upon receipt of an informal claim, if a formal claim had not been filed, an application form was to be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, the formal claim was considered to have been filed as of the date of receipt of the informal claim. When a claim had been filed which met the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening was accepted as a claim. 38 C.F.R. § 3.155. The term "application" was not previously defined in the statute. However, in the regulations, "claim" and "application" were considered equivalent and were defined broadly to include "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); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit), in Rodriguez, pointed out that for purposes of establishing the requirements and procedures for seeking veterans' benefits, a claim, whether "formal" or "informal" must be "in writing" in order to be considered a "claim" or "application" for benefits, and that the provisions of 38 C.F.R. § 3.1(p) defined "claim," informal as well as formal, as a "communication in writing." Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) referred to "an informal claim," it necessarily incorporated the definition of that term in 38 C.F.R. § 3.1(p) as a "communication in writing." The Federal Circuit also pointed out the provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim had to take. All that was required was that the communication "indicat[e] an intent to apply for one or more benefits under the laws administered by the Department," and "identify the benefits sought." The Board's charge is to determine the date of claim and the date entitlement to the benefit sought arose. The Veteran appeals for an earlier effective date for entitlement to service connection for PTSD. The currently assigned date is August 20, 2009. A review of the record does not reveal any evidence reflecting an intent to file a claim for benefits for PTSD or for an acquired psychiatric disorder prior to August 20, 2009, even after exhaustive attempts to develop the record pursuant to the Court's remand of this matter. The Veteran does not appear to have received an explicit PTSD diagnosis prior to the date of claim, nor communicated to medical providers or anyone else a belief that an acquired psychiatric condition may relate to active duty service. Further, there is no document that can be construed as a formal or informal claim for benefits for such a condition prior to August 20, 2009. The Veteran has averred that VA medical records from 1971 or 1972, to include from the Los Angeles VAMC and/or the Palo Alto VAMC, should reflect that he sought treatment at these facilities at or around those dates, but exhaustive attempts to obtain these records have been unsuccessful, and subsequent VA medical treatment records do not reference such records or treatment associated with them. (Continued on the next page) Notwithstanding the above, the Board notes that the mere mention of a condition in a medical record alone cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006). Although the provisions of 38 C.F.R. § 3.157 (2014) allow for a report of examination or hospitalization by VA to be accepted as an informal claim for benefits (without any indication of intent to apply for benefits) in certain instances, the provisions are limited to instances where the Veteran is applying for an increased rating where service connection or pension has already been established, or when a claim for compensation was previously disallowed for the reason that the service-connected disability was not compensable, none of which are applicable to the claim at issue here. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Importantly, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon, 12 Vet. App. 32. Thus, while the Board is sympathetic to the Veteran's sincerely held belief that he is entitled to an earlier effective date for service connection for PTSD, there is no basis for such entitlement under the law. Under the law governing effective dates, no earlier date is available, as even assuming entitlement arose prior to August 20, 2009, that date would constitute the later of the two dates between when entitlement arose, (prior to August 20, 2009) and the date of claim (August 20, 2009). Accordingly, there is no basis for entitlement to an earlier effective date in this case under the law, and the claim must be denied. K. R. Laffitte Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.