Citation Nr: 24010271 Decision Date: 03/04/24 Archive Date: 03/04/24 DOCKET NO. 20-28 330 DATE: March 4, 2024 ORDER Entitlement to an earlier effective date than February 11, 2016, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT 1. In January 1993, the Veteran filed an original, legacy service connection claim for PTSD. The RO denied that claim in a September 1993 legacy rating decision. The Veteran did not file a legacy Notice of Disagreement (NOD) regarding that decision within one year, and new and material evidence was not received within that period. 2. In February 2012, the Veteran filed a petition to reopen the previously, finally denied service connection claim for PTSD. In a September 2013 legacy rating decision, the RO reopened and denied the claim. The RO notified the Veteran accordingly in September 2013. The Veteran did not file a legacy NOD within one year, and new and material evidence was not received within that period. 3. In February 2016, the Veteran filed a VA 21-526EZ, Fully Developed Claim, regarding the previously denied service connection claim for PTSD. In October 2016, the RO granted service connection for PTSD, and assigned an effective date of February 11, 2016. The Veteran appealed this decision. 4. In February 2020, the Board denied claims of clear and mistakeable error (CUE) with the September 1993 and September 2013 rating decisions. CONCLUSION OF LAW 1. The October 2008 rating decision's denial of entitlement to service connection for hypertension and the January 2014 rating decision's denial of the petition to reopen that previously denied claim became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 19.52, 20.1103. 2. The criteria for entitlement to an earlier effective date than February 11, 2016, for the grant of service connection for PTSD are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.114, 3.155, 3.2501, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1988 and June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in an October 2016 rating decision, the RO granted entitlement to service connection for PTSD and assigned an initial, total (100 percent) rating effective February 11, 2016, the date the RO received the Veteran's claim of service connection. In an April 2017 VA 21-526EZ, Fully Developed Claim, the Veteran filed a claim of earlier effective date on the basis of CUE. In a July 2017 rating decision, the RO continued February 11, 2016, effective date for service connection. The Veteran appealed this decision in October 2017. In February 2020, the Board denied claims of CUE with the September 1993 and September 2013 rating decisions and remanded a claim for an effective date prior to February 11, 2016, for reasons other than CUE, due to a lack of Statement of the Case (SOC). An SOC was issued in April 2020 and the Veteran substantively appealed this decision in July 2020. The Board notes that the Veteran requested a hearing in the July 2020 substantive appeal. The Veteran appeared before a Veterans Law Judge in March 2022. During a pre-hearing conference it became apparent that the Veteran's request for an earlier effective date was based entirely on the notice of CUE in the earlier decisions. As such, it was agreed that a hearing was not necessary. In an abundance of caution, the Board notified the Veteran of the right to a hearing in a January 26, 2024 letter. Because the Veteran did not renew his request for a hearing within the 30 days, the Board presumes waiver of the hearing request which is also consistent with his earlier statements in March 2022. 1. Entitlement to an earlier effective date than February 11, 2016, for the grant of service connection for PTSD is denied. After review, the Board finds the evidence is persuasively against a finding of an earlier effective date prior to February 11, 2016, for the grant of service connection for PTSD. The relevant law provides that the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). In this case, the Board notes that the Veteran's application to reopen a claim of service connection for PTSD in February 2016 was not within one year of the Veteran's separation from service in June 1992. Therefore, the effective date cannot be the day following the Veteran's separation from service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The Board next notes that the effective date for an award of compensation based on a reopened claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). As the Veteran's previous September 1993 and September 2013 rating decisions were not perfected and became final, the earliest effective date for service connection is the date of the Veteran's submitted claim to reopen on February 11, 2016. The Board notes that earlier effective dates may also be awarded on the finding that clear and unmistakable error (CUE) was committed in a previous final rating decision. However, as noted above, the Board, in a February 2020 decision, denied claims of CUE with the September 1993 and September 2013 rating decisions. The Veteran has not appealed this decision. Therefore, the effective date of the Veteran's claim for PTSD must be February 11, 2016, the date of receipt of the Veteran's claim to reopen. While the Board is sympathetic to the Veteran's belief that he is entitled to an earlier effective date, there is no basis in the record for assigning an effective date earlier than February 11, 2016, for service connection for PTSD. The Board is without authority to grant a claim on an equitable basis and instead is constrained to follow the specific provisions of law. 38 U.S.C. § 7104 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994). For these reasons, entitlement to an effective date earlier than February 11, 2016, for the Veteran's PTSD, is denied. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.102, 3.400. Martin T. Mitchell Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri 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.