Citation Nr: 23040980 Decision Date: 07/26/23 Archive Date: 07/26/23 DOCKET NO. 19-12 451 DATE: July 26, 2023 ORDER Entitlement to an effective date prior to June 22, 2018 for the grant of service connection for posttraumatic stress disorder is denied. FINDING OF FACT The Veteran filed a claim to reopen the previously denied claim of service connection for posttraumatic stress disorder on June 22, 2018. CONCLUSION OF LAW The criteria for an effective date prior to June 22, 2018, for service connection for posttraumatic stress disorder (PTSD) are not met. 38 U.S.C. § 5110; 38 C.F.R. §3.400 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1993 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in July 2021. A transcript is of record. Entitlement to an effective date prior to June 22, 2018, for the grant of service connection for PTSD The Veteran asserts two theories of entitlement for an earlier effective date for the award of service connection for PTSD. First, he contends that he submitted new and material evidence within one year of the notification letter originally denying his claim of service connection for PTSD. See June 2018 Fully Developed Claim. Second, he testified at the July 2021 Board hearing that he submitted the proper documents to appeal the June 2015 rating decision wherein the agency of original jurisdiction (AOJ) denied his claim of service connection for PTSD; however, the AOJ misfiled those documents under his father's claim file, who shares the same first and last name. See July 2021 Hearing Transcript. On June 22, 2018, the Veteran filed a claim, in part, requesting the AOJ reconsider his previously denied claim of entitlement to service connection for PTSD. Ultimately, the AOJ granted the Veteran's claim in an October 2018 rating decision and assigned an effective date of June 22, 2018. In January 2019, the Veteran submitted a Notice of Disagreement (NOD) disputing the effective date for the award of service connection for PTSD. 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)(2), (r); see also Jones v. Shinseki, 619 F.3d 1368, 1371 (Fed. Cir. 2010) (noting 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 the statute or the regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error was committed in a prior decision, or unless 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), 3.400. The fact that a claimant previously applied for the same benefit, and was denied, is not relevant to the assignment of an effective date based on a reopened claim. Washington v. Gober, 10 Vet. App. 391, 393 (1997); see also Sears v. Principi, 16 Vet. App. 244, 248 (2002) (the Board may not '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'). Prior to the June 2018 claim, the AOJ denied the Veteran's claim of service connection for PTSD in a June 2015 rating decision. As noted above, the Veteran asserts two theories of entitlement as to why the effective date of service connection for his PTSD should be prior to June 22, 2018. Regarding the Veteran's assertion that he filed new and material evidence within one year of notification of the June 2015 rating decision, the Veteran's claim file does not contain any relevant evidence associated with the file within one year of the June 2015 Notification Letter. To the extent the Veteran asserts he submitted new and material evidence and the AOJ misfiled the evidence, there is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992). While Ashley dealt with regularity of procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied this presumption of regularity to procedures at the regional office as well. Here, it is presumed that if the Veteran had submitted any evidence within one year of the June 2015 Notification Letter, that evidence would have been associated with the claims file in the normal course of the VA employee's duty who would have accepted such a filing. The only evidence suggesting the Veteran submitted new and material evidence within the applicable appeal period and the AOJ misfiled that evidence is the Veteran's own statement, which is insufficient to rebut the presumption of regularity. Regarding the Veteran's alternate assertion that the AOJ misfiled his documents appealing the June 2015 rating decision under his father's claim, the same presumption noted above applies. Again, it is presumed that if the Veteran had submitted a document indicating dissatisfaction with the June 2015 rating decision, the evidence would have been associated with the claims file. Ashley, 2 Vet. App. 307; Mindenhall, 7 Vet. App. 271. The Veteran did file a Notice of Disagreement (NOD) appealing a portion of the June 2015 Rating Decision; however, he only listed "Entitlement to increased evaluation for Right Ankle condition in excess of 10%" as the issue he wished to appeal. See April 2016 NOD. The Veteran has not submitted, nor does the record contain, sufficient evidence to rebut the presumption of regularity. Rather, the April 2016 NOD weighs in favor of finding the AOJ properly executed its duties. The Board has thoroughly reviewed the evidence of record to determine whether there is evidence warranting an earlier effective date for the award of service connection for PTSD. During the applicable appeal period, the Veteran's file does not contain any evidence indicating dissatisfaction with the June 2015 rating decision denying service connection for PTSD and does not contain any relevant VA medical or treatment records. Moreover, his file does not contain previously unconsidered service department records that were not part of the record at the time of the June 2015 rating decision. The AOJ is also entitled to the presumption of regularity, which the Veteran has not rebutted. In other words, the Veteran's claims file does not contain any evidence that might entitle him to an earlier effective date for the grant of service connection. In sum, the Board finds that the June 2015 rating decision is final because the Veteran did not file a NOD with regards to his PTSD claim; the AOJ did not receive new and material evidence within one year of the June 2015 rating decision; and the AOJ did not receive additional relevant service department records after the June 2015 rating decision. Moreover, the Veteran has not alleged a specific clear and unmistakable error in any of the prior rating decisions. The most probative evidence of record is the April 2016 NOD in which the Veteran appealed a portion of the June 2015 rating decision, but notedly does not appeal the claim of service connection for PTSD. This evidence, in conjunction with the presumption of regularity, weighs persuasively against the claim for an earlier effective date for the award of service-connection for PTSD. (Continued on the next page) ? As the June 2015 rating decision is final, the effective date of the grant of service connection for PTSD, based on the reopened claim, cannot be earlier than June 22, 2018. As the evidence of record persuasively weighs against the Veteran's claim, the benefit-of-the-doubt rule is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, the claim for an effective date earlier than June 22, 2018 for the award of service connection for PTSD is denied. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, Associate 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.