Citation Nr: 18160589
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 13-06 309
DATE:	December 27, 2018
ORDER
An effective date prior to January 5, 2011, for the award of service connection for posttraumatic stress disorder (PTSD) is denied.
FINDING OF FACT
1. A March 2008 rating decision denied service connection for a depressive disorder, claimed as secondary to service-connected diabetes mellitus; because the Veteran did not file a timely notice of disagreement regarding this determination, it is final.
2. A claim for service connection for posttraumatic stress disorder was received by the VA on January 5, 2011; no prior unadjudicated claim is of record.
CONCLUSION OF LAW
The criteria for an effective date earlier than January 5, 2011, for the award of service connection for PTSD have not been met. 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Marine Corps from May 1969 to April 1971. The Veteran was awarded the Combat Action Ribbon and the Vietnam Service Medal, among other decorations, for this service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision from the Seattle, Washington Regional Office (RO).
In June 2016, the Veteran testified before the undersigned Veteran’s Law Judge (VLJ). A copy of the hearing transcript is associated with the Veteran’s electronic claims file.
In September 2016, the Board remanded the claim to allow the Agency of Original Jurisdiction (AOJ) to adjudicate a pending clear and unmistakable error (CUE) claim regarding the March 2008 denial of entitlement to service connection for a depressive disorder, claimed as secondary to service-connected diabetes mellitus. In July 2017, the AOJ denied the CUE claim and the Veteran did not file a notice of disagreement. Therefore, the Board is satisfied that there has been substantial compliance with the remand's directives with regard to this claim and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998).
1. Duties to Notify and Assist
VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The question of the appropriate effective date to be assigned is a downstream element of the award of service connection, and no further notice is required. Hart v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Here, the Veteran has made no such assertions of prejudice. Accordingly, VA's duty to notify has been satisfied.
Consequently, the Board finds that all necessary development of the downstream earlier-effective-date claim has been accomplished, and therefore appellate review of this claim may proceed without prejudicing the Veteran.
1. Entitlement to an Earlier Effective Date for Service-Connected PTSD
Service connection for PTSD was granted in an April 2012 rating decision effective, January 5, 2011, which was the date VA received the claim for service connection for PTSD. In an October 2012 Notice of Disagreement, the Veteran contends that the effective date for service connection for PTSD should have been granted earlier. Specifically, the Veteran contends the effective date should be established in the year 2000. After review of the record, the Board finds that the appropriate effective date for service connection for PTSD if January 5, 2011, and that entitlement to an earlier effective date is denied.
The Veteran's original claim for service connection for a mental health disability was in September 2007 where the Veteran’s claimed entitlement to service connection for a depressive disorder, secondary to his service-connected diabetes mellitus. In a March 2008 rating decision, service connection for a depressive disorder, secondary to his service-connected diabetes mellitus bilateral hearing loss was denied because the evidence did not show that the Veteran’s depression was caused by the service-connected diabetes mellitus. The Veteran did not appeal and the did not file a timely notice of disagreement or intent to appeal regarding this determination, and it thus became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.
The Veteran has not alleged, and the record does not reflect, any communication from the Veteran or his representative which could be construed as a timely notice of disagreement or attempt to initiate appellate review of the March 2008 rating decision. Rather, the Veteran contends that based on evidence from April 2000 that showed he was prescribed the drug Effexor, for anxiety should have been used to infer a claim for PTSD. However, the Board notes that this evidence was submitted in August 2014 and was not before the adjudicators when the March 2008 rating decision was issued. Thus, to the extent to which the Veteran did have a prior September 2007 service connection claim for a depressive disorder, claimed as secondary to service-connected diabetes mellitus, this was properly adjudicated by the RO, and that decision subsequently became final. 38 C.F.R. § 20.1103. Accordingly, only a claim for CUE can result in an earlier effective date given these facts. Rudd v. Nicholson, 20 Vet. App. at 300. As noted in the introduction, in July 2017, the AOJ denied a claim for CUE and the Veteran did not appeal that decision.
Upon review of the totality of the record, the Board finds no other communication from the Veteran, his representative, or a third party received prior to January 5, 2011, which could reasonably be construed as a formal or informal unadjudicated claim for service connection for PTSD. See Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007) ("a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability"). 
As there remain no formal or informal unadjudicated claims provided or received prior to January 5, 2011, it is considered the date of the claim of entitlement to service connection for PTSD.
(Continued on the next page)
 
Because the preponderance of the evidence is against an effective date prior to January 5, 2011, for the award of this benefit, the benefit-of-the-doubt does not apply. 38 U.S.C. § 510(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
 
H. SEESEL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Teague, Associate Counsel 

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