BVA9500912 DOCKET NO. 93-04 298 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUE Entitlement to an effective date earlier than March 17, 1987, for the award of disability compensation benefits for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD M. F. Halsey, Counsel INTRODUCTION The veteran served on active duty from August 1951 to October 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an RO decision assigning March 17, 1987, as the effective date for a grant of service connection for PTSD. Service connection for PTSD was granted by a September 1987 rating decision. As part of this action, March 17, 1987, was set as the effective date for the award. Thereafter, an application for an increase in compensation benefits was received from the veteran. On this document, received in December 1987, he wrote that he was claiming benefits retroactively because he had filed a claim as early as the 1960's. A similar statement was received in February 1991, and the RO took action in March 1991 to adjudicate the claim for an earlier effective date. Although the RO has referred to the present appeal as a request to reopen a previously denied claim, apparently construing the September 1987 action as final, the Board finds that the application received from the veteran in December 1987, specifically mentioning a claim for retroactive benefits, suffices as a notice of disagreement with the effective date set by the September 1987 decision. Therefore, the Board construes the current appeal as being from the September 1987 decision. During the pendency of this appeal, the veteran expressed his desire to pursue a claim of service connection for a retained foreign body in his upper palate and gum. The nature of this claim was clarified in correspondence dated in October 1992 from the veteran's representative. The RO has taken steps to further develop this claim, but a rating decision was not entered prior to transfer of the record to the Board. Since it appears that further adjudicatory action is necessary on this claim of service connection, it is referred to the RO. The case file was transferred from the RO to the Board in February 1993. Additional evidence was received from the veteran's representative in April 1993. A written waiver of consideration of this evidence was also provided. Considering the timely fashion in which this material was received, and the waiver accompanying it, the Board has accepted it in accordance with 38 C.F.R. § 20.1304 (1993) and has considered it, including a tape recording prepared by the veteran, in deciding this appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has had PTSD since service and consequently should have received compensation benefits beginning much earlier than March 17, 1987. He asserts that he first filed a claim of service connection for a nervous disorder in 1963 and should therefore receive benefits retroactively to that point. He claims that the evidence clearly shows that he was misdiagnosed during the 1960's as being schizophrenic, when he in fact was suffering from shell shock or combat fatigue, the same problem he has now and which has come to be known as PTSD. Conse-quently, he contends that the effective date for the award of compensation for PTSD should be set consistent with his original claim of service connection for a nervous disorder. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for an earlier effective date. FINDINGS OF FACT 1. An application for service connection for a nervous disorder was received from the veteran in January 1965. 2. By a March 1965 rating decision, service connection for a psychiatric disability--specifically, a schizophrenic reaction-- was denied. The veteran was notified by a letter dated in April 1965 that his claim of service connection for a nervous disorder had been denied. He did not appeal. 3. An application to reopen the claim was received on March 17, 1987. CONCLUSION OF LAW The assignment of an effective date earlier than March 17, 1987, for the award of disability compensation benefits for PTSD is not warranted. 38 U.S.C.A. §§ 1110, 1155, 5107, 5108, 5110, 7105(c) (West 1991); 38 C.F.R. §§ 3.156, 3.303, 3.400, 20.302, 20.1103 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The law governing the assignment of an effective date for an award of disability compensation is contained in 38 U.S.C.A. § 5110(b)(1) (West 1991), which provides: The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. See also 38 C.F.R. § 3.400(b)(2) (1993) (to the same effect). Otherwise, in cases where the application is not filed until more than one year from release of service, the effective date will be date of receipt of the claim, or the date entitlement arose, whichever is later. Id. However, when there has been a decision of the RO denying a claim of service connection, and the claimant has not appealed within one year of notice of the denial, that decision becomes final and any effective date set for disability compensation based on a later grant of the benefit will be the date of receipt of the reopened claim. 38 C.F.R. §§ 3.156, 3.400(r), 20.1103 (1993). Through application of the law and regulations described above, the RO set March 17, 1987, as the effective date for the award of disability compensation for the veteran's service-connected PTSD. He did not file a claim for service connection for a psychiatric disability within one year of his release from service. Moreover, such a claim was not filed until January 1965, when he claimed that he had a nervous condition secondary to his combat wounds. Service connection was denied by the RO in March 1965, he was properly notified of the decision and informed of his appellate rights, and he did not appeal this decision. The failure to appeal, as evidenced in his April 1965 letter, wherein he said that he did not wish to claim a nervous condition, resulted in the March 1965 denial becoming a final decision. § 20.1103. Hence, by application of § 3.400, an effective date set for any later grant of service connection could be no earlier than the date of receipt of the claim to reopen. Such a claim to reopen was not received until March 17, 1987. An effective date may be established sooner than March 17, 1987, only if it were shown that the earlier denial (March 1965) were clearly and unmistakably erroneous (CUE) or that a reopened claim was received at some earlier time. The thrust of the veteran's contentions is that his disability was misdiagnosed in the 1960's as schizophrenia; however, this allegation does not amount to a well-grounded claim of clear and unmistakable error. If a claimant-appellant wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error...that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet.App. 40, 44 (1993). The veteran has not alleged error in the March 1965 rating decision. In short, he has not asserted that facts, as they were known at the time, were overlooked, or that the law or regulations were misapplied. Russell v. Principi, 3 Vet.App. 310, 313 (1992). Even if information prepared after the March 1965 decision is received that calls into question the earlier diagnosis of schizophrenic reaction or even directly refutes the earlier diagnosis, such informa-tion would not reasonably raise a CUE claim in the March 1965 rating decision. This is so because a CUE claim must be based on the facts as they were known in March 1965, not subsequently. Id. Subsequently prepared evidence may provide a basis for reopening a previously denied claim, but not for finding CUE in the previous denial. The veteran has pointed to a March 24, 1965, record wherein an examiner indicates that the veteran's problems appeared more the product of a psychoneurotic illness rather than a psychosis. Nevertheless, this examiner diagnosed a passive-aggressive character disorder which is a condition for which service connection may not be granted. 38 C.F.R. § 3.303 (1993). Even if it were error for the March 1965 rating board not to have considered this information, it does not suggest that the outcome should have been different. Fugo. Therefore, there is no basis for a claim of CUE in the March 1965 rating decision. The March 1965 rating decision may not be impugned in the manner suggested by the veteran's assertions. As to whether a claim to reopen was received earlier than March 17, 1987, the Board finds no evidence of there being such a claim. The provisions of 38 U.S.C.A. § 5110 (West 1991) refer to the date an "application" is received. "'Application' is not defined in the statute. However, in the regulations, 'claim' and 'application' are considered equivalent and are defined broadly to include 'a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.'" Servello v. Derwinski, 3 Vet.App. 196, 198 (1992) (citing 38 C.F.R. § 3.1(p) (1991)). In the veteran's case, no such communication following the March 1965 denial was received until March 17, 1987. Under some circumstances, the date of VA outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(1) (1993). This may be done so long as a formal claim for compensation has previously been allowed, or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree. 38 C.F.R. § 3.157(b) (1993). In the veteran's case, it appears that he was receiving treatment at VA after the 1965 denial and well before the March 1987 claim, but the dates of any such treatment may not be construed as an informal claim to reopen because his claim for service connection had not yet been allowed. Id. Subsequent to the March 1987 claim, the veteran has submitted numerous statements, from medical practitioners and lay persons alike, attesting to his long-standing problems with PTSD. He has also provided great detail regarding his war experiences and the reasons he believes that he has always had PTSD and not schizophrenia. Although he was no doubt wounded while serving his country, the Board is constrained by the law and regulations made by the Congress governing the establishment of effective dates for the award of compensation. Service connection has been granted for PTSD, a recognition that psychiatric difficulties he experiences are indeed directly related to his military service. However, even if medical knowledge and a retrospective review of his records show affirmatively that he has all along had PTSD, by whatever name, for the reasons already enunciated, disability compensation may not be made effective any sooner than receipt of the veteran's claim to reopen: March 17, 1987. ORDER An effective date earlier than March 17, 1987, for the award of disability compensation for PTSD is denied. M. CHEEK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.