Citation Nr: 18160343
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 14-34 685A
DATE:	December 26, 2018
ORDER
An effective date prior to January 10, 2011, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied.
FINDING OF FACT
On January 10, 2011, VA received the Veteran’s claim to reopen his previously denied claim of entitlement to service connection for PTSD; service connection was granted, effective that date.
CONCLUSION OF LAW
The criteria for an effective date prior to January 10, 2011, for the grant of service connection for PTSD have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400, 3.155, 3.157 (in effect prior to March 24, 2015) (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service from July 1970 to July 1972.
This matter comes before the Board of Veterans’ Appeals (Board) from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
In March 2018, the Veteran appeared before the undersigned Veterans’ Law Judge and presented testimony.  A transcript of the hearing has been associated with the claims file.
Effective Date
The Veteran seeks an effective date prior to January 10, 2011, for the grant of service connection for PTSD.  The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110.  Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter.  38 C.F.R. § 3.400. 
Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be 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 is the date of receipt of claim, or date entitlement arose, whichever is later. 
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, however, are only effective for claims and appeals filed on or after March 24, 2015.  As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied.
Under the old regulations, any communication or action, indicating intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, 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.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015).
If a Veteran files an application for service connection with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board.  See 38 U.S.C. §§ 7104, 7105 (2012).  If he does not initiate an appeal within one year, or if he initiates a timely appeal and the appeal is denied, the disallowance becomes final.  See 38 C.F.R. §§ 20.302, 20.1100, 20.1103 (2015).  With exceptions, any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application.  See 38 C.F.R. § 3.400(q), (r) (2015).  Specifically, the effective date of an award of disability compensation based upon the submission of new and material evidence other than service department records received after final disallowance will be the date of receipt of the new claim or the date that entitlement arose, whichever is later.  38 C.F.R. § 3.400(q)(1)(ii) (2015).
There is no set form that an informal written claim must take.  All that is required is that the communication indicates intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought.  Rodriguez v. West, 189 F.3d 1351 (1999).  Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability.  Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).
A report of VA examination or hospitalization can be accepted as an informal claim for benefits.  38 C.F.R. § 3.157(b)(1) (in effect prior to March 24, 2015).  However, the provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission.  See Norris v. West, 12 Vet. App. 413, 417 (1999) (VA regulations provide that an informal claim for an increased disability rating “‘will’ be initiated by a report of examination or hospitalization for previously established service-connected disabilities”).
In this case, the Veteran filed his initial claim for service connection for PTSD in September 2007.  The RO denied the claim in June 2008.  At that time, the RO had considered VA treatment records dated from 1997 to 2008.  The Veteran did not submit a notice of disagreement with the rating decision or submit new and material evidence within one year of the issuance of the rating decision.  Therefore, the rating decision became final.
The Veteran did not file any additional evidence or correspondence until January 10, 2011.  At that time, he requested that his claim for service connection for PTSD be reopened for consideration.  The RO granted service connection in January 2012 and assigned an effective date of January 10, 2011.
During his hearing before the Board, the Veteran’s representative presented several arguments in support of an earlier effective date for service connection for PTSD.  First, she argued that at the time of the first rating decision, the RO should have considered entitlement to service connection for other disabilities, such as anxiety and panic attacks, which were diagnosed in 1997.  The representative based the argument on the findings in Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Notably, Clemons was decided after the June 2008 rating decision.  Regardless, in Clemons, the United States Court of Appeals for Veterans Claims (Court) held that a claim for benefits for a particular mental disability “cannot be a claim limited to that diagnosis, but must rather be considered a claim for any mental disability that my reasonably be encompassed” by the evidence.  See Clemons, 23 Vet. App. at 5.  The Veteran’s argument turns on whether, under Clemons, (1) there remained a pending unadjudicated claim for an anxiety disorder or other acquired psychiatric disorder that survived the finality of the June 2008 rating decision; or (2) whether the September 2007 claim for PTSD was a single claim for an acquired psychiatric disorder, which was denied in June 2008 and unappealed.  If the latter, then an effective date earlier than January 10, 2011, is not warranted.
To answer this question, the Board must look at the holdings of Clemons itself, where the appellant in that case had similarly filed a service connection claim for PTSD, other psychiatric disabilities other than PTSD were evident in the record, and the RO did not expand the claim to include consideration of these other disabilities.  In assessing its own jurisdiction in the matter, the Court found that the appellant had filed one single claim for disability compensation based upon a mental disability and that given the appellant’s multiple medical diagnoses, the Secretary and the Board failed to make findings of fact necessary to correctly determine the appellant’s current condition relative to the claim that he filed.  In other words, the mental disorder claims reasonably raised in that case were not separate, unadjudicated claims, but rather were part of one claim that was “improperly adjudicated.”  In stating as much, the Court found that the Board had the jurisdiction to expand the issue following the Veteran’s timely appeal, and to discuss whether service connection for other psychiatric disabilities reasonably raised by the record could be granted in the first instance, without first awaiting a rating decision addressing any pending unadjudicated claims. 
Applying Clemons to the present case, the Board finds that the September 2007 claim for PTSD was a single claim for any acquired psychiatric disorder reasonably raised by the record during the pendency of the adjudication.  To the extent the RO did not expand the claim when an anxiety disorder was evident, such could be considered an “improper adjudication.”  Crucially, unlike the appellant in Clemons, the Veteran did not appeal the rating decision.  Per the threshold jurisdictional findings made in Clemons itself, failure to expand a claim under Clemons does not give rise to separate unadjudicated service-connection claims that would survive the finality of an unappealed rating decision.
In reaching this conclusion, the Board agrees with the reasoning outlined recently by the Court in a non-precedential December 12, 2017 Memorandum Decision, Lacoste vs. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1789 (December 12, 2017).  In that decision, the presiding Judge affirmed the Board’s denial of an earlier effective date award, indicating that where the RO “improperly adjudicated” a claim pursuant to Clemons, the remedy was to appeal the decision.  If the decision is final and cannot be appealed, such cannot provide the basis for an earlier effective date for a subsequent award of service connection in the absence of clear and unmistakable error (CUE).  See Bethea v. Derwinski, 2 Vet. App. 252, (1992) (a memorandum decision may be cited or relied upon for any persuasiveness or reasoning it contains).  The Veteran has not filed a claim specifically alleging clear and unmistakable error (CUE) in the RO’s final June 2008 rating decision.  He may do so at any time.
In sum, regardless of whether the June 2008 rating decision should have expanded the scope of the Veteran’s claim for PTSD to include consideration of the diagnosis of anxiety disorder or any other acquired psychiatric disorder, it did not, and the Veteran did not challenge that finding by pursuing an appeal.  Thus, the decision became final and no separate anxiety claim remained pending.  DiCarlo v. Nicholson, 20 Vet. App. 52, 57 (2006) (recognizing that “the conclusion that a prior decision is final is not a conclusion that the prior decision is correct”).  As such, an earlier effective date for service connection for PTSD is not warranted under this theory of entitlement.  
During the hearing, the Veteran’s representative also argued that a claim for service connection for an acquired psychiatric disorder was raised as early as 1981 and that VA noted that the Veteran intended to file a claim at that time.  He testified that his brother was a doctor for VA and that he encouraged the Veteran to file a claim for service connection.  Unfortunately, the evidence does not include any correspondence indicating any intent to file a claim prior to September 2007.
The Veteran’s representative also indicated that records dated in 1997 showed a diagnosis of anxiety and that VA had constructive possession of the records.  While the argument was not fully articulated, it appears that she contends that the treatment records should constitute a claim for service connection.  The Board has considered this argument; however, constructive possession of treatment records can only constitute a claim when a claim for service connection has been previously denied or for increased rating claims.  Here, the evidence shows, and as the Veteran testified, he did not file his initial claim for service connection for PTSD until September 2007.  Thus, treatment records alone, without some indication of intent to file a claim for benefits, is not sufficient to constitute an informal claim for service connection.  Further, even if the Veteran had filed something indicating his intent to file a claim prior to his submission of the September 2007 formal claim, that informal claim would have remained pending.  38 C.F.R. § 3.160(c).  If a claim is left pending, it can be addressed when a subsequent claim for the same disability is adjudicated by the VA, in which case the effective date for any award of benefits will be the effective date applicable to the original claim.  Adams v. Shinseki, 568 F.3d 956, 960 (2009).  Here, if any informal claim had been received prior to September 2007 and remained pending, the pending claim was adjudicated in the June 2008 rating decision, which is final.  Thus, the Board cannot find that any claims for service connection were pending prior to January 10, 2011.
(Continued on the next page)
 
As noted above, the effective date of an award of disability compensation based on the submission of new and material evidence other than service department records received after final disallowance will be the date of receipt of the new claim or the date that entitlement arose, whichever is later.  In this case, VA treatment records show treatment of acquired psychiatric disorders, to include notations of PTSD, prior to January 10, 2011.  Accordingly, the date of claim is the earliest effective date available for service connection for PTSD as it is later than the notations of treatment.  As such, an effective date prior to January 10, 2011 for service connection for PTSD must be denied.
 
L. CHU
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Amanda G. Alderman 

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