Citation Nr: 0006291 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 98-08 825A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an effective date earlier than January 5, 1993, for the grant of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from January 1964 to August 1975. The veteran was granted service connection for PTSD by the RO's November 1994 rating decision which was initially awarded a disability rating of 30 percent, effective from the date of his claim on January 5, 1993. The veteran appealed the initial rating assigned and the rating was increased to 70 percent in a July 1995 rating decision, effective from April 1, 1995 after a period of hospitalization in February and March 1995 for PTSD during which he was assigned a temporary total rating under 38 C.F.R. § 4.29 based on hospitalization. A September 1995 rating action granted a total rating based on individual unemployability effective April 1, 1995. Thereafter, a Board of Veterans' Appeals (Board) decision in January 1997 remanded the claim for a schedular rating in excess of 70 percent for PTSD. A Board decision in April 1998 granted a 100 percent schedular rating and am April 1998 decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO) effectuated the grant of the 100 percent evaluation and assigned an effective date of January 5, 1993, which was the date the appellant filed his claim for service connection for PTSD. A notice of disagreement (NOD) with the effective date was filed in April 1998 and after a June 1998 statement of the case (SOC) was issued the claim for an earlier effective date was perfected by the filing of a substantive appeal later that month. FINDING OF FACT The claim for service connection for PTSD was received on January 5, 1993, more than one year after discharge from active service. CONCLUSION OF LAW The legal criteria have not been met for an effective date earlier than January 5, 1993, for service connection for post-traumatic stress disorder. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection was granted for post-traumatic stress disorder, effective January 5, 1993. The appellant claims that service connection for post-traumatic stress disorder should go back to 1975, when he filed a claim for service connection for a nervous condition. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 1991) and 38 C.F.R. § 3.400 (1999). Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 1991). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400 (1999). With a claim for disability compensation, the effective date of an award will be (1) the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service or (2) the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (1999) (emphasis added). The appellant testified at an RO hearing in July 1999. He stated that in the April 1998 Board decision, the Board reported that when the appellant was hospitalized at a VA facility from February 1993 to April 1993, a VA examiner had stated that the onset of the appellant's symptoms was prior to his separation from service. Based on this statement and the fact that the appellant filed a claim for service connection for a nervous condition within one year from separation from service, the appellant asserted that service connection for post-traumatic stress disorder should be effective in 1975. He stated that he was aware that he had not been diagnosed with PTSD at that time; however, he argued that PTSD was not a known diagnosis at that time. The record reflects that that the appellant was seen on various occasions for depressive reaction, pathological intoxication, and impulsive behavior during service. In a July 1975 report of medical examination, the examiner stated that the appellant's psychiatric evaluation was abnormal and noted a history of a nervous breakdown and taking Antabuse for alcoholism. The appellant filed a claim for service connection in September 1975, which included a claim for service connection for a nervous condition. He underwent a VA psychiatric evaluation in December 1975. The VA examiner entered a diagnosis of alcohol addiction. In a January 1976 rating decision, the RO denied service connection for impulsive behavior, claimed as nervous condition, determining that it was a constitutional or developmental abnormality and not a disability under the law. The Board does not find that such rating decision is a previously denied claim for service connection for PTSD, as a diagnosis of PTSD was not of record at that time. There are no medical records, to include VA medical records, from 1975 until 1993 that show treatment for, or a diagnosis of, PTSD. In a VA Form 21-4138, Statement in Support of Claim, received on January 5, 1993, the appellant stated that he wanted to add a claim for service connection for PTSD. He was hospitalized in a VA facility from February 1993 to April 1993. A diagnosis of PTSD was entered. Pursuant to the statute and VA regulations, the appellant is not entitled to an effective date earlier than January 5, 1993, for the grant of service connection for PTSD. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The fact that the appellant filed a claim within one year following service for a nervous condition does not establish an earlier effective date, as the Board has concluded that such claim was not a claim for service connection for PTSD. The regulation which is applicable to this case states that if the claim is not received within one year following separation from service, the effective date is the date of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(ii). The earliest effective date available to the appellant is the date of claim-January 5, 1993. Even if the Board considered the September 1975 claim for service connection for a nervous condition, to include a claim for service connection for PTSD, the appellant was notified of the denial of service connection for a nervous condition in a January 1976 rating decision, and he did not appeal that decision. He claimed at his hearing that he did not know he could appeal the decision. Regardless, that decision is final. Moreover, he did not specifically deny that he received notice of the January 1976 RO denial. Rather, he testified that he had gotten "a denial letter from the VA" (page 4 of the transcript). Moreover, there is no allegation that the 1976 rating action is not final because of any clear and unmistakable error (CUE) within the meaning of 38 C.F.R. § 3.105(a) (1999). Under 38 C.F.R. § 3.400 (1999), the effective date of a reopened claim is the date that the claim to reopen is received or the date entitlement arose, whichever date is later. See 38 U.S.C.A. § 5110(a) (West 1991). Thus, if the January 1976 rating decision was considered to be a denial of a claim for service connection for a nervous condition, to include PTSD, the effective date would still be January 5, 1993, as that is the date that a claim was filed to reopen a previously denied claim. See id. In other words, if the 1975 claim included a claim for PTSD, the 1976 rating action is final in the absence of CUE (which is not alleged) and precludes an effective date prior to the reopened claim of January 5, 1993. If the 1975 claim did not include a claim for PTSD, then the January 5, 1993 claim is an original claim. In either event, January 5, 1993 is the proper effective date for service connection for PTSD. Lastly, it must be determined whether the veteran filed a claim (whether a formal or informal claim) for service connection for PTSD prior to January 5, 1993. The Board has reviewed the entire evidentiary record and other than a notation on VA examination in December 1997 that the prior VA examination in December 1975 had noted alcohol addiction and sensory neuropathy of the left 5th finger, there is no clinical evidence on file indicating that the veteran sought treatment for psychiatric disability prior to January 5, 1993 nor any reference in any correspondence from the veteran to psychiatric disability, much less to PTSD. Thus, the Board concludes that there was no formal or informal claim for service connection for PTSD prior to January 5, 1993. Accordingly, an effective date earlier than January 5, 1993, is not warranted in this case under VA regulations governing effective dates for awards based on a claim for service connection. See 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400(b)(2)(i). In fact, an effective date earlier than January 5, 1993, it is legally impossible. See id. The United States Court of Appeals for Veterans Claims (the Court) has held that in a case where the law, as opposed to the facts, is dispositive of the claim, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date earlier than January 5, 1993, for the grant of service connection for PTSD is denied. JOHN FUSSELL Acting Member, Board of Veterans' Appeals