Citation Nr: 18900002
Decision Date: 08/15/18	Archive Date: 08/15/18

DOCKET NO. 180720-51
DATE:	August 15, 2018
ORDER
Entitlement to an effective date prior to April 13, 2009, for entitlement to service connection for posttraumatic stress disorder (PTSD) due to clear and unmistakable error in a February 2010 rating decision, is denied.
FINDINGS OF FACT
1.  The Veteran submitted an informal claim for entitlement to service connection for PTSD which was received by VA on April 13, 2009.
2.  Service connection for PTSD was granted in a February 2010 rating decision, and an effective date of April 13, 2009, was assigned.
3.  The February 2010 rating decision was reasonably supported by the evidence of record at that time and was consistent with the laws and regulations then in effect.
4.  The evidence of record does not contain any communication received from the Veteran that could be considered a claim for entitlement to service connection for PTSD prior to April 13, 2009.
CONCLUSIONS OF LAW
1.  The February 2010 rating decision did not contain clear and unmistakable error.  38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105(a) (2017).
2.  The requirements for an effective date prior to April 13, 2009 for the award of service connection for PTSD have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from December 1967 to August 1969.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision by the Department of Veterans Affairs (VA).  
On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The Veteran chose to participate in BEAAM, the Board of Veterans' Appeals (Board) Early Applicability of Appeals Modernization research program.  This decision has been written consistent with the new AMA framework.
Earlier Effective Date 
The Veteran maintains that he is entitled to an effective date prior to April 13, 2009, for the grant of service connection for PTSD.  Specifically, he contends that he filed a claim for entitlement to service connection for “nervousness” in 1970, and VA acknowledged receipt of such in an April 2018 rating decision.  Through his representative, he asserts that symptoms attributed to his currently-service-connected PTSD are inseparable from a notation of “nervousness” in a VA examination report authored in June 1970.  A Brief, dated July 19, 2018, repeatedly notes that VA failed to adjudicate his claim in the July 1970 rating decision, that his symptomatology mirrored his current PTSD symptoms, and that the February 2010 rating decision was clearly and unmistakably erroneous when an effective date of April 13, 2009, was assigned.
Generally, the effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of claim, or date entitlement arose, whichever is later.  See 38 U.S.C.            § 5110; 38 C.F.R. § 3.400.
A “claim” is defined in the VA regulations as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.”  38 C.F.R. § 3.1(p).  An informal claim is “[a]ny communication or action indicating an intent to apply for one or more benefits.”  It must “identify the benefit sought.”  38 C.F.R. § 3.155(a).  VA must look to all communications from a claimant that may be interpreted as applications or claims, both formal and informal, for benefits and is required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).
Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris, may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  38 C.F.R. § 3.155(a) (2015). 
In Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009), the Court has held that an informal claim must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought.  See also Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate original claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”).
Of note, 38 C.F.R. § 3.157, pertaining to what constitutes an informal claim, has been deleted from the most recent iteration of the CFR as VA no longer accepts informal claims.  However, it was in effect at the time the Veteran filed his claim for entitlement to service connection for PTSD, and is therefore discussed herein.
To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).  The Court has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error.  Lalonde v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C. § 7104(a); Servello.  The Court has held, however, that the Board is not required to “conjure up issues that were not raised by the appellant.”  Brannon v. West, 12 Vet. App. 32 (1998).
Importantly, the Veteran has not asserted that a claim for entitlement to service connection for PTSD was filed prior to April 2009, neither during Board hearing testimony in March 2013, nor in a statement filed in support of the present claim.  While 38 C.F.R. § 3.157 allows reports of examination or hospitalization to be considered as an informal claim in some instances, such specifically relates to cases involving and earlier effective date for increased ratings, and does not apply to cases in which the issue at hand relates to an earlier effective date for the grant of service connection.  See 38 C.F.R. § 3.157(b).  Even so, the Veteran testified in March 2013 that he only sought psychiatric treatment recently.  
The Board has carefully reviewed all of the evidence of record, but finds that the assignment of an effective date prior to April 13, 2009, is not warranted for the grant of service connection for PTSD.
There is no indication that the Veteran filed a claim for service connection for PTSD, either formal or informal, prior to an informal claim received on April 13, 2009.  As the Veteran reported (and presumably took medication to treat) nervousness at the time of the June 1970 VA examination, the July 1970 rating decision did not grant a separate evaluation for this manifestation.  The rating decision noted that the Veteran was found to be somewhat impatient, irritable, and easily lost his temper, though awarded service connection only for hearing loss and concussion residuals.  The Veteran did not appeal this decision.
As no claim for service connection for PTSD was received prior to April 13, 2009, there is no basis for assignment of an effective date prior to April 13, 2009.  See 38 C.F.R. § 3.400(r).
The Board is sympathetic to the Veteran’s claim and understands his frustration with the outcome of the July 1970 rating decision.  Unfortunately, the Board is ultimately bound by the law passed by Congress, and this decision is dictated by the relevant statutes and regulations.  The Board is without authority to grant benefits simply because it might perceive the result to be equitable.  See 38 U.S.C. §§503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  As discussed, the primary requirement for the assignment of an effective date is the receipt of a claim by VA.
Clear and Unmistakable Error (CUE)
The Veteran argues that the February 2010 rating decision that granted his claim of entitlement to compensation for PTSD, and assigned an effective date of April 13, 2009, should be reversed or revised on the basis of CUE.  As noted in the preceding section, he points to a notation of “nervousness” in a June 1970 VA examination report, and the lack of a separate rating for such in a July 1970 rating decision.  Importantly, the Board notes that the Veteran’s November 2013 informal claim for CUE applied only to the February 2010 rating decision, and not the July 1970 rating decision.  In a July 2018 Brief, the Veteran’s representative stated, “Although the Veteran has limited his CUE argument to encompass the February 2010 VA decision, if the Board is unable to grant relief…then it should also determine whether there is CUE in the July 1970 decision.”  
As noted by the Board in a March 2015 decision (which adjudicated issues not currently on appeal), CUE claims as to rating decisions must first be adjudicated by the agency of original jurisdiction.  The Board is therefore unable to address whether CUE existed in the July 1970 rating decision in the first instance, and the following analysis will focus on the February 2010 rating decision only.  Should the Veteran desire to file a CUE claim to address the July 1970 rating decision, he his free to do so.
The Board notes that an unappealed rating decision is final and binding based on the evidence of record at the time of such decision in the absence of CUE in that decision.  When the evidence establishes CUE in a prior decision, the decision will be reversed or amended.  38 U.S.C. § 7105(c); 38 U.S.C. § 3.105(a).  
There is a three prong test for determining whether a prior determination involves CUE: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would manifestly have changed the outcome at the time it was made; and (3) a determination that there was CUE must be based upon the record and law that existed at the time of the prior adjudication in question.  Damrel v. Brown, 6 Vet. App. 242 (1992); Russell v. Principi, 3 Vet. App. 310 (1992).  
CUE a very specific and rare kind of error.  It is the kind of error, of fact or law, that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  If it is not absolutely clear that a different result would have ensued, the claimed error cannot be deemed CUE.  Such are “errors that are undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made.”  Russell v. Principi, 3 Vet. App. 310, 313 (1992).  
Furthermore, in determining whether there is CUE, the doctrine of resolving reasonable doubt in favor of the Veteran is not for application, inasmuch as error, if it exists, is undebatable, or there is no error within the meaning of 38 C.F.R. § 3.105(a).  Russell at 314; see also Yates v. West, 213 F.3d 1372 (2000).
As noted above, the Veteran reported treatment for, and was noted to have, “nervousness” at the time of his June 1970 VA examination.  However, no psychiatric diagnosis was provided at that time, and the Veteran does not contend otherwise.  The Veteran does not contend that he submitted a claim for service connection for PTSD, or any other diagnosed psychiatric condition, prior to April 2009.  Instead, the crux of his contention centers on the failure of the July 1970 rating decision to address his psychiatric symptoms with the assignment of an additional disability rating.  Again, the Board notes that the 1970 rating decision is not at issue, as the current appeal only applies to the 2010 rating decision.  
While the lengthy July 2018 Brief has been carefully considered, the argument that an effective date prior to April 2009 is warranted, based on the failure by VA to properly adjudicated a March 1970 claim for a mental disorder, ultimately fails.  Time after time, the Veteran’s representative asserts that, if VA had considered the medical records form 1970, in 1970, then service connection for a free-standing psychiatric disorder would have been granted at that time.  It was noted that applicable portions of the rating schedule allowed for the assignment of a separate evaluation of the Veteran’s psychiatric symptoms at the time of the 1970 rating decision, and that VA failed to adjudicate a claim for nervousness.  While it is not clear, it appears that the July 1970 rating decision encompassed psychiatric symptomatology in the grant of service connection for concussion residuals, as those symptoms were specifically addressed in the accompanying rationale.  As noted, this decision was not appealed. 
The RO, in its February 2010 rating decision, granted the Veteran’s claim for service connection for PTSD, assigning an effective date of April 13, 2009, the date of receipt of the Veteran’s informal claim for service connection.  
The Veteran has not argued that the correct facts were not before the RO at the time of its February 2010 rating decision.  While the Veteran insists that the notation of “nervousness” during a June 1970 VA examination should be a consideration in this case, such arguments do not demonstrate error that is undebatable which would clearly alter the February 2010 decision which granted entitlement to service connection.  As discussed in detail, the effective date was determined by the initial receipt of the Veteran’s claim for PTSD, and there is no indication that he submitted a claim for PTSD, or any psychiatric disorder, subsequent to the unappealed July 1970 rating decision and prior to the February 2010 rating decision.
Thus, upon review of the totality of the evidence of record, the Board cannot say that it is “undebatable” that the RO’s February 2010 rating decision contains error in failing to grant an effective date prior to April 13, 2009, for PTSD.  The evidence of record at the time of the RO’s decision supported its conclusion that the first claim of record, formal or informal, was received on that date.  The Veteran has not presented evidence of CUE in the RO’s February 2010 adjudication, which, had such error not been made, would have manifestly changed the outcome of the decision.  As such, the claim of CUE in the February 2010 rating decision is denied.




(CONTINUED ON NEXT PAGE)
For the foregoing reasons, the record does not provide a basis for assignment of an effective date earlier than April 13, 2009, for the grant of service connection for PTSD.  Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 
KRISTY L. ZADORA
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Scott Walker

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