Citation Nr: 23014367 Decision Date: 03/09/23 Archive Date: 03/09/23 DOCKET NO. 19-00 893A DATE: March 9, 2023 ORDER The claim for an effective date earlier than March 20, 2017, for the award 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 denied in a final September 2006 rating decision. Notice of the rating decision was provided on September 25, 2006. New and material evidence was not received within a year of the September 2006 rating decision. 2. The Veteran filed a claim to reopen service connection for PTSD on March 20, 2017. 3. Service connection for PTSD was granted in an October 2017 rating decision with an initial 30 percent evaluation assigned effective March 20, 2017. 4. The award of service connection for PTSD in the October 2017 rating decision was not based on the receipt of additional service department records or evidence received within a year of the initial decision considering and denying the claim. The date of claim, March 20, 2017, is earlier than the date entitlement to the benefit arose on October 5, 2017. CONCLUSION OF LAW The criteria for an effective date earlier than March 20, 2017 for the award of service connection for PTSD are not met. 38 U.S.C. §§ 5101, 5110, 7105; 38 C.F.R. §§ 3.1, 3.156, 3.157, 3.303, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from June 2000 to June 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This appeal was developed in accordance with the VA Legacy appeals process. As such, the regulations specifically pertaining to VA's current appeals process under the Appeals Modernization Act (AMA) are not for application. On January 9, 2019, VA received a completed Rapid Appeals Modernization Program (RAMP) Opt-in Election form from the Veteran requesting to have his Legacy appeal issue processed in the new system created by the AMA. The Veteran's VA Form 9 (substantive appeal) was received the next day, on January 10, 2019. VA did not take any action in response to the Veteran's opt-in request and VA's processing of RAMP opt-in requests concluded on October 18, 2022. See Unprocessed Election into the Rapid Appeals Modernization Program, 87 Fed. Reg. 43387 (July 20, 2022). Accordingly, this case remains in the Legacy system and the Board will continue with its adjudication without any additional action. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing in December 2022. A transcript of the hearing is of record. 1. Entitlement to an effective date earlier than March 20, 2017 for the award of service connection for PTSD. The Veteran contends that an earlier effective date is warranted for the award of service connection for PTSD. In March 2006, the Veteran filed a claim for service connection for PTSD which was denied in a September 2006 rating decision. At that time, the RO found that an in-service stressor for PTSD was established by the Veteran's participation in combat through his receipt of the Combat Action Ribbon. The RO then denied the claim for service connection as the evidence did not establish a medical diagnosis of PTSD or a nexus between PTSD and the Veteran's combat stressors. The Veteran was mailed notice of the rating decision on September 25, 2006. He did not appeal the September 2006 rating decision and no new and material evidence was received within the one-year appeal period following the decision. While the Veteran filed a VA Form 9 in July 2006, requesting to appear at a hearing before the Board, this substantive appeal was received prior to the issuance of the September 2006 rating decision. Accordingly, it cannot serve to initiate an appeal with respect to the denial of the claim for service connection for PTSD. Furthermore, neither the Veteran nor his representative have alleged any clear and unmistakable error (CUE) in the September 2006 rating decision. The September 2006 rating decision is therefore final and the current claim for an earlier effective date can proceed. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 20.302, 20.1103. On March 20, 2017, the Veteran filed a claim to reopen service connection for PTSD. Service connection for PTSD was then granted in the October 2017 rating decision on appeal. An initial 30 percent evaluation was assigned effective March 20, 2017, the date the Veteran's claim to reopen was received. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The effective date of an award of service connection based on new and material evidence received after a final adjudication will be the later of the date entitlement arose or the date of receipt of the reopened claim unless the new and material evidence consists of service department records, in which case the effective date will be the later of the date entitlement arose or the date of receipt of the earlier claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As noted above, the Veteran's claim for service connection for PTSD was initially denied in a September 2006 rating decision. Service connection for PTSD was later granted in the October 2017 rating decision effective March 20, 2017. The new and material evidence used by the RO in October 2017 did not consist of service department records. Rather, the RO relied on an October 2017 VA examination and medical opinion to reopen and grant service connection for PTSD. There was also no pending (unadjudicated) claim prior to March 2017, nor was any additional evidence pertinent to the claim received within a year from the September 2006 initial denial of the service connection claim. In fact, the only communication from the Veteran to VA during the period between September 2006 and March 2017 pertained to claims for dependencynot service connection. On October 5, 2017, a VA examiner provided a medical opinion in support of the service connection claim, diagnosing PTSD and connecting it to the Veteran's combat service. There is some earlier evidence of anxiety and PTSD in the claims file; private hospital records show the Veteran was seen in June 2015 for chest pressure due to anxiety. At that time, he reported a six month history of anxiety and panic attacks. VA treatment records also show the Veteran had a positive PTSD screen in July 2016. However, his VA Medical Center (VAMC) healthcare providers did not diagnose PTSD in an August 2016 mental health evaluation and instead identified the presence of an unspecified trauma or stressor related disorder. Thus, the October 2017 VA examination represents the earliest competent evidence diagnosing PTSD and a link between the condition and the Veteran's combat service. The Board therefore finds that entitlement to service connection for PTSD arose on October 5, 2017. The effective date for an award of service connection based on new and material evidence is the later of the date entitlement arose or the date the claim was received. Nelson v. Principi, 18 Vet. App. 407 (2004). In this case, the claim to reopen service connection was received on March 20, 2017. In contrast, entitlement to the benefit did not arise until later on October 5, 2017. Thus, the Veteran is already in receipt of an effective date that is earlier than the date provided for by the controlling regulations. An effective date earlier than March 20, 2017 for the award of service connection for PTSD is not possible. The pertinent legal authority governing effective dates in this case is clear and specific, and the Board is bound by this authority. Pursuant to this authority, the Board finds that there is no legal basis by which an effective date for the award of service connection earlier than March 20, 2017 can be assigned; hence, the claim for an earlier effective date must be denied. 38 C.F.R. § 3.400(b)(2)(i). Danette Mincey Veterans Law Judge Board of Veterans' Appeals M. Riley, Attorney for the Board of Veterans' Appeals 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.