Citation Nr: 25005392 Decision Date: 04/22/25 Archive Date: 04/22/25 DOCKET NO. 19-02 244 DATE: April 22, 2025 ORDER The claim of entitlement to an effective date of December 13, 1994, for the award of service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), is granted. FINDING OF FACT 1. The Veteran was discharged from active service on December 12, 1994. 2. On February 24, 1995, the Veteran filed a VA Form 21-526, Veterans Application for Compensation, seeking service connection for a number of specified disabilities as well as for other conditions noted in her service treatment records (STRs). 3. The Veteran's STRs show that she sought and received mental health treatment during service, and these records include initial diagnostic impressions of PTSD. 4. The Veteran's claims for service connection for acquired psychiatric disorders (depression and PTSD) were initially denied in a March 1998 rating decision. 5. A September 1998 Statement filed by the Veteran constituted a timely notice of disagreement (NOD) with the March 1998 rating decision. 6. In March 1999, relevant service department records were added to the claims file. 7. A July 2000 Statement by the Veteran constituted a timely NOD to a September 2000 rating decision that denied service connection for depression and PTSD. 8. The AOJ did not issue a statement of the case (SOC) in response to the Veteran's September 1998 or July 2000 NODs. 9. The March 1998 rating decision did not become final, and the service connection claim for an acquired psychiatric disorder remained pending. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of December 13, 1994, for the award of service connection for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Air Force from December 1990 to December 1994. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ). The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) in March 2020. A written transcript of the hearing has been prepared and is associated with the claims file. In June 2020, the Board issued a decision which denied entitlement to an earlier effective date prior to April 28, 2010, for service connection for PTSD due to military sexual trauma (MST). The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2022 the Court issued a Memorandum decision setting aside the June 2020 Board decision. Among other findings, the Court stated that, given apparent irregularities in the record, the Board failed to properly address whether the Veteran's initial claim for PTSD had been denied in a final rating decision. In June 2023, the Board issued a decision in which it granted an earlier effective date to January 8, 2007. The Board found that a January 2003 rating decision had become final, and that the Veteran reopened her PTSD claim by filing an informal claim on January 8, 2007. The Veteran again appealed this decision to the Court, arguing that the Board failed to address arguments concerning whether VA had failed to issue SOC's in response to statements (contended to be NODs) submitted by the Veteran following the March 1998 and September 1999 rating decisions. In September 2024, the Court set aside and remanded the Board's 2023 decision, finding that it had failed to substantially comply with the Court's July 2022 remand instructions by failing to address arguments made by the Veteran pertaining to the finality of the 1998 and 2000 rating decisions. The matter has again returned to the Board. Whether an effective date prior to January 8, 2007, is warranted for the award of entitlement to service connection for PTSD. The Veteran contends she is entitled to an effective date prior to January 8, 2007, for the award of service connection for PTSD. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If a claim is received within one year following separation from service, the effective date of an award of compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). Under VA's legacy appeal system, a claimant or her representative must file a notice of disagreement with a determination of the AOJ within one year from the date that the AOJ mailed notice of the determination. 38 C.F.R. § 20.302(a). If an NOD is not filed within the one-year time period, the AOJ decision becomes final, subject to limited exceptions. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103. A timely filed NOD, however, places the issue into appellate status, which requires the issuance of a statement of the case. See 38 C.F.R. § 19.26. Prior to March 24, 2015, generally any written communication from a claimant or representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result constituted a valid NOD. 38 U.S.C. § 7105; 38 C.F.R. § 20.201. While special wording was not required, the NOD must have been in terms that could have been reasonably construed as a disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201; Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). The actual wording of the communication and the context in which it was written was to be considered in determining whether a communication constituted an NOD. Jarvis v. West, 12 Vet. App. 559 (1999). In general, however, communications from a Veteran are to be liberally construed. Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000). 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 amendment was only effective for claims and appeals filed on or after March 24, 2015. As the procedural history at issue in this case occurred before March 24, 2015, the amendment is not applicable in this instance and will not be applied to the issue on appeal. Following a timely NOD, a claim remains pending until adjudicated by the Board. See Myers v. Principi, 16 Vet. App. 228 (2002) (where a veteran had filed a timely appeal from a prior AOJ decision and VA failed to recognize the appeal, neither the prior AOJ decision nor its subsequent denial of reopening of the claim becomes final). See also Jones v. Shinseki, 23 Vet. App. 122, 125 (2009), aff'd, 619 F.3d 1368 (Fed. Cir. 2010) ("[O]nce an NOD has been filed, further [AOJ] decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board. Only a subsequent Board decision can resolve an appeal that was initiated but not completed") (quoting Juarez v. Peake, 21 Vet. App. 537, 543 (2008)). Turning to the facts of the instant appeal, In February 1995, the Veteran submitted a VA 21-526 Veterans Application for Compensation, seeking service connection for several specific conditions, and noting that she also wished to be service connected for "all other conditions as noted in military medical records." On June 7, 1996, the Veteran submitted a VA 21-4138 Statement In Support of Claim, specifying that she wished to amend her claim to include service connection for depression. On June 23, 1997, she informed VA that she wished to amend her depression claim to include a service connection for PTSD as a result of sexual trauma. In March 1998, the AOJ issued a rating decision denying service connection for depression. In June 1998, within a year of the rating decision, VA received correspondence from the Veteran (dated May 1998) responding to the findings made in the rating decision and informing VA of the possible location of additional relevant records. The Veteran submitted a similar statement in September 1998. In March 1999, additional service department records were added to the Veteran's claim file, including personnel and performance evaluations related to her time in service. In May 1999, the AOJ issued another rating decision considering the additional performance evaluations but again denying her service connection claims for depression and PTSD. Then, in July 1999, VA provided the Veteran with a medical examination regarding her claimed PTSD condition. In September 1999, the AOJ issued another rating decision confirming its prior denials of service connection for PTSD. In July 2000, the Veteran filed a VA 21-4138 Statement in Support of Claim, again requesting that the AOJ take certain action to assist in the development of her claim. Handwritten along the side of this Statement is a comment from the Veteran indicating that it was her intent that the Statement be considered an "NOD for 9/99." It appears from the evidence of record that the AOJ did not interpret the June 1998 or July 2000 Statements to be NODs to the March 1998 and September 1999 rating decisions as the AOJ did not issue SOCs in response to these submissions. Years later, following subsequent development and adjudicative actions, the AOJ granted entitlement to service connection for an acquired psychiatric disorder, historically claimed as PTSD, depression, and anxiety, effective April 28, 2010. The Veteran has continued to assert her entitlement to an earlier effective date for the award of service connection for her acquired psychiatric conditions. In consideration of the above, the Board first finds that the addition of service department records to the Veteran's claim file prevented the March 1998 rating decision from becoming final. See 38 C.F.R. 3.156(c). Further, the Board finds that the September 1998 Statement filed by the Veteran constituted a timely NOD with the March 1998 rating decision as it showed her interest in pursuing service connection for a claim that the AOJ had just denied. The July 2000 Statement even more clearly indicated it was the Veteran's intent to appeal the September 1999 rating decision. The evidence of record does not include SOCs responsive to the September 1998 or July 2000 NODs. Because the AOJ did not issue an SOC following the Veteran's July 2000 NOD, the September 1999 rating decision did not become final, and the original claim remained pending since. Jones, 23 Vet. App. 122. As for the date of the original claim, the Board acknowledges that in her original February 1995 VA 21-526 Veterans Application, the Veteran did not expressly identify depression or PTSD as current disabilities and only broadly indicated that she also sought service connection for "all other conditions as noted in military medical records." In some situations, this lack of specificity would likely be inadequate to serve as the basis for even an informal claim. A "legally sufficient claim [must] provide information, even at 'a high level of generality,' to identify the sickness, disease, or injury for which benefits are sought." Sellers v. Wilkie, 965 F.3d 1328, 1337 (quoting Veterans Justice Grp. v. Sec'y of Veterans Affairs, 818 F.3d 1336, 1356 (Fed. Cir. 2016)). See also Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009) (explaining that formal and informal claims require an "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing"). In this case, however, even cursory review of the Veteran's service records reveals that the Veteran received extensive mental health treatment during her active service. An initial treatment provider diagnosed her with PTSD, apparently related to a pre-service assault. While subsequent records indicate that she may not have continued to meet the full diagnostic criteria for PTSD, her records indicate that she received mental health services for more than a year during her active service. See September 1993 Psychiatry Consultation. Thus, although it was not until June 7, 1996, that the Veteran first explicitly asked to amend her original claim to include depression, because the Veteran specifically asked for service connection for conditions "noted" in her STRs, the Board finds that the issue of service connection for a psychiatric disorder was encompassed by her original February 1995 claim. This finding means that the Veteran sought service connection for an acquired psychiatric disorder within a year of her discharge from service. Finally, with regard to the date of entitlement, the term "date entitlement arose" is not defined in the current statute or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110 (a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). The date entitlement arose is not the date that the AOJ receives the relevant evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. It is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis. DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). The Board finds that the evidence of record supports a finding that the Veteran has had symptoms of an acquired psychiatric disorder approximately since her discharge from service. See e.g., May 1995 VA neurological examination (noting the Veteran was taking medication for depression). As such, the Board finds that the criteria for entitlement to service connection for an acquired psychiatric condition were met as early as December 13, 1994, the first day after the Veteran's separation from service. See 38 C.F.R. § 3.303(d). In conclusion, the Veteran's original claim encompassed service connection for an acquired psychiatric disorder and was received within one year of the Veteran's discharge from active duty. The Veteran's claim remained pending since filing due, in part, to the AOJ's failure to issue an SOC in response to the Veteran's July 2000 NOD. As the Veteran has been treated for an acquired psychiatric disorder since within a year of her discharge. As such, entitlement to an earlier effective date of December 13, 1994, is assigned for the grant of service connection for an acquired psychiatric disorder. There is no legal entitlement to an even earlier effective date. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, 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.