Citation Nr: 24010230 Decision Date: 03/01/24 Archive Date: 03/01/24 DOCKET NO. 20-02 832 DATE: March 1, 2024 ORDER An effective date earlier than January 31, 2017, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. In a March 2014 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran's claim of service connection for PTSD. Although the Veteran submitted a timely notice of disagreement (NOD) in September 2014, following the issuance of a statement of the case (SOC) in September 2015, he did not perfect an appeal, nor was new and material evidence received, within the applicable time period. 2. VA received the Veteran's application to reopen the previously denied claim of entitlement to service connection for PTSD on January 31, 2017; the record does not contain any evidence that may be considered a request to reopen the previously denied claim prior to this date. CONCLUSION OF LAW The criteria for the assignment of an effective date earlier than January 31, 2017, for the award of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1971 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). In connection with his appeal, the Veteran requested a Board hearing. In a February 2022 letter, the Veteran was notified that he had been scheduled for a hearing in May 2022. On the day of the hearing, the Veteran's representative requested that the hearing be postponed due to the illness of the Veteran's daughter. In a June 2022 statement, the Veteran indicated that he had had medical appointments which had prevented him from attending the hearing. In November 2022, the Board determined that the Veteran had demonstrated good cause for failing to appear for the May 2022 Board hearing and rescheduled it. In January 2024, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of the hearing is associated with the claims file. 1. Entitlement to an effective date earlier than January 31, 2017, for the grant of service connection for PTSD The Veteran seeks an effective date of 2014 for the grant of service connection for PTSD. He contends that he filed an original claim of service connection for PTSD in September 2014 and thereafter continuously prosecuted that claim by sending in medical records and notifying VA that he sought service connection for that disability. See, e.g., January 2024 Hearing Transcript at pages 2-3. Unless specifically provided otherwise, the effective date of an award based on an original claim or 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). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on an original claim or a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. The "date of the claim" means the date of the application based upon which benefits are awarded, not the original claim for service connection. Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). The Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations 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 are effective for claims filed on or after March 24, 2015. The record on appeal reflects that in January 2013, VA received the Veteran's original claim for service connection for PTSD. In a March 2014 rating decision, the RO denied the claim because although VA medical records dated from March 2013 to March 2014 showed he was being treated for PTSD, the Veteran had not identified an in-service stressor and the available evidence was insufficient to confirm a link between the current symptoms and an in-service stressor. Further, the RO determined that the Veteran had not engaged in combat with the enemy and had received no awards or decorations indicative of combat. His service personnel records showed he was stationed in Korea from June to September 1971, and his service treatment records were silent for complaints, diagnosis, or treatment related to PTSD. The RO notified the Veteran and his representative of the decision the same month, and the Veteran filed a timely notice of disagreement (NOD) in September 2014 and included a statement identifying in-service stressors to support his claim for PTSD. Specifically, the Veteran described one "stressful condition" as being assigned to guard duty protecting the Demilitarized Zone (DMZ) in Korea from June 1971 to September 1971 while carrying weapons in the darkness, staying awake, and not knowing North Koreans from South Koreans when people were detained. He also reported that while in transit from Korea to the United States, the plane made a stop in Hanoi, Vietnam, for three days in September 1971, and he was required to serve as a guard while others placed bodies and injured soldiers on medivac planes. Finally, he indicated that when he arrived at Fort Polk, he was notified that his sister had been killed in an automobile accident. In September 2015, the RO mailed a statement of the case (SOC) to the Veteran's address of record and provided a copy to his representative. The SOC explained that the RO was unable to corroborate the Veteran's participation in combat or any other in-service stressor, nor did the record contain evidence of a link between his current symptoms and an in-service stressor. The letter explained the time limit for completing an appeal of the March 2014 rating decision following the SOC. However, the Veteran did not perfect an appeal, nor was new and material evidence received, within the applicable time period. In this regard, the Board notes that in November 2015, within the 60-day appeal period following the SOC, the RO obtained additional VA treatment records in support of an October 2015 application for compensation for unrelated claims. Applicable to the issue as to whether the March 2014 rating decision became final, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). New evidence is evidence not previously part of the actual record before agency adjudicators. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The treatment records previously considered in the March 2014 rating decision and September 2015 SOC reflect the Veteran's reports of feeling depressed after his fiancée's son was murdered; having nightmares of traumatic experiences, which were not identified; having had family members who were Hurricane Katrina evacuees; and having a crying spell on an aunt's birthday because she had died one year earlier, and they had been close. The new VA treatment records added to the claims file in November 2015 showed continued participation in individual and group therapy related to PTSD and depression and documented the Veteran's reports of in-service and post-service stressors. For example, an April 2014 social work note reflects his complaint of experiencing "nightmares of combat and dead bodies [and] thinking about children he saw in Vietnam that he possibly could have helped." In June 2014, he told his clinical social worker that in addition to service in Korea, he was a "Vietnam combat veteran," his sister had died in a car accident while he was in service, and he had "gone through three marriages" with the last resulting in him losing everything and becoming homeless due to gambling and drug problems by his former spouse. He also indicated he was still receiving Worker's Compensation benefits after an on-the-job injury. During a psychiatry appointment later that month, he stated that he "served in Vietnam in 1971 and spent 11 months there...as a military policeman." He reported that his work-related injury occurred while driving a truck delivering automobile parts when the steering rod broke and he lost control of the truck and went into a ditch, injuring his left thigh, hip, and back. The diagnosis was "mood disorder due to general medical condition; possible PTSD, for sure has from recent truck accident." Subsequent records from 2014 show his complaints of marital discord, ongoing severe back pain, returning to work and experiencing harassment by a supervisor, and having been deployed to Vietnam for combat. VA social work and psychiatry notes from 2015 reflect continued reports of marital conflict that resulted in divorce, having served in the DMZ in Korea and in combat in Vietnam, and ongoing back pain. In September and October 2015, the Veteran reported that he was grieving over the loss of a coworker who had recently died in a truck accident and was disappointed over the denial of his claim of service connection for PTSD. The clinician noted that the Veteran had been diagnosed with PTSD and that his stressors included grief and benefits matters. Here, the Board finds that the VA treatment records added to the claims file in November 2015 are cumulative or redundant of the evidence of record at the time of the March 2014 rating decision and September 2015 SOC. The Veteran's statements to VA treatment providers regarding being on guard duty in Korea offered no details about particular military stressors beyond the general experience of being on guard duty in Korea described in the September 2014 stressor statement. Similarly, the statements the Veteran made to VA treatment providers that he participated in combat in Vietnam and was stationed there for up to 11 months do not raise a reasonable possibility of substantiating the claim. Notably, the RO previously found that the Veteran's military records did not demonstrate any service in Vietnam, including any participation in combat. His DD Form 214 showed that he had 2 months and 19 days of foreign service, and this is consistent with a service personnel record that shows he served in Korea from June 26, 1971, to September 14, 1971. His service records do not reflect any service in Vietnam or participation in combat. In summary, the Board finds that the VA treatment records added to the claims file in November 2015 do not vitiate the finality of the March 2014 rating decision or the 2015 SOC. Thus, the March 2014 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. On January 31, 2017, VA received the Veteran's application to reopen the previously denied claim for service connection for PTSD. An April 2017 rating decision denied the claim because new and material evidence had not been submitted and the Veteran did not RSVP for a VA examination the AOJ had scheduled in connection with the claim. The RO notified the Veteran and his representative of the decision the same month. Less than one year later, the Veteran filed a new application to reopen the previously denied claim of service connection for PTSD, which VA received on March 14, 2018. The May 2018 rating decision on appeal granted service connection for PTSD and assigned a 50 percent rating effective March 14, 2018. The Veteran disagreed with the assigned effective date and expressed his belief that an effective date of 2014 should be assigned because he was diagnosed with PTSD at that time by the Montgomery VA Medical Center (VAMC). In a December 2019 rating decision, the RO assigned an earlier effective date of January 31, 2017, for the grant of service connection for PTSD, corresponding with the date of receipt of his earlier request to reopen. The decision explained that the earlier effective date had been assigned because VA had received the Veteran's March 2018 claim within one year of the April 2017 rating decision. During the January 2024 hearing, the Veteran testified that he had been receiving treatment at VA for PTSD since filing his original claim for service connection in January 2013. His representative argued on his behalf that by filing a stressor statement in September 2014 with his NOD after the March 2014 rating decision, he had continually prosecuted his claim. The representative also asserted that the stressor statement had not been reviewed even at the time of the April 2017 rating decision. Having reviewed the evidence of record, the Board finds that an effective date earlier than January 31, 2017, is not warranted for the grant of service connection for PTSD. As set forth above, the record reflects that the RO did consider the Veteran's stressor statement in the September 2015 SOC. After the RO issued the September 2015 SOC, the next communication VA received from the Veteran was an October 2015 claim for service connection for disabilities unrelated to PTSD. In connection with that claim, the RO obtained additional VA treatment records, arranged for VA examinations, and granted those claims in a January 2016 rating decision. Prior to receipt on January 31, 2017, of the application to reopen the claim for service connection for PTSD, VA did not receive any other communication from the Veteran or his representative related to PTSD. In summary, the evidence shows the Veteran did not continuously pursue his claim for service connection for PTSD from the date of his original claim in January 2013. Notably, he and his representative had the opportunity to file a substantive appeal within 60 days of the September 2015 SOC, which expressly listed the stressor statement received with the Veteran's NOD, but a timely appeal was not perfected. No other communication was received prior to January 31, 2017, that may be accepted as an application to reopen the previously denied claim for service connection for PTSD. Therefore, January 31, 2017, is the proper date for the award of service connection for PTSD. The Board notes that unless an exception to finality applies, the prior RO decision that denied service connection for PTSD is final, precluding an award of an effective date earlier than the most recent claim of entitlement to service connection for PTSD received on January 31, 2017. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104(a), 20.1103. Notably, the Veteran has not filed a motion specifically alleging that a prior RO decision contained clear and unmistakable error (CUE) on the basis that either the correct facts, as they were known at the time, were not before VA, or the statutory and regulatory provisions extant at the time were incorrectly applied. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105, (describing what constitutes clear and unmistakable error). The Board does not dispute that the Veteran experienced symptoms of PTSD prior to receipt of his application to reopen the claim on January 31, 2017. However, the Board is obligated to apply the law as Congress has created it. As explained above, the law does not support the assignment of an effective date prior to January 31, 2017, for the grant of service connection for PTSD. Accordingly, the appeal for an effective date prior to that date must be denied. (Continued on the next page) ? In reaching this decision, the Board has considered the provisions of 38 C.F.R. § 3.114 . Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f), to eliminate the requirement for corroborative evidence of a stressor where a VA mental health expert has diagnosed PTSD and the stressor is related to the veteran's fear of hostile military or terrorist activity. See 75 Fed. Reg. 39,843 (July 13, 2010). The United States Court of Appeals for Veterans Claims (CAVC) has held that the revisions to 38 C.F.R. § 3.304(f) was not a liberalizing regulation. Foreman v. Shulkin, 29 Vet. App. 146, 151-52 (2018). Therefore, the provisions of 38 C.F.R. § 3.114 which speak to effective dates of awards for a liberalizing law of VA regulation does not apply. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Kirscher Strauss 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.