Citation Nr: 0000582 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 96-40 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an effective date earlier than February 26, 1996, for the award of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Johnston, Counsel INTRODUCTION The veteran had active service from July 1964 to July 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1996 rating decision issued by the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD effective from February 26, 1996. FINDINGS OF FACT 1. All relevant evidence necessary for the present disposition of the appeal has been requested or obtained. 2. The veteran had active military service from July 1964 to July 1966. 3. PTSD was added to the rating schedule effective in April 1980. 4. The earliest clinical evidence suggesting that the veteran had PTSD was in November 1995. 5. The veteran's claim for service connection for PTSD was received by VA on February 26, 1996. CONCLUSION OF LAW The criteria for an effective date of service connection for PTSD prior to February 26, 1996, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Except as otherwise provided, the effective date of an award based on an original claim 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). The effective date of an award of disability compensation shall be the day following the date of discharge or release if that veteran's application therefor is received within one year from such discharge or release. 38 U.S.C.A. § 5110(b)(1). The effective date of 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. For direct service connection, the effective date is the day following separation from service or date entitlement arose if the claim was received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The veteran was separated from service in July 1966. Almost 30 years after he was separated from service, he filed a claim for service connection for PTSD which was received by VA on February 26, 1996. This was not within one year after the veteran was separated from service. Moreover, prior to receipt of the formal claim in February 1996, there was no informal claim or any statement or communication evidencing an intent to file a claim for service connection for PTSD. See 38 C.F.R. § 3.155. VA outpatient treatment records show that the veteran had first been provided treatment for what was initially identified as "PTSD vs. major depression, alcohol and drug abuse; marijuana and cocaine in remission" in November 1995. Later VA outpatient records reaffirm an impression or diagnosis of PTSD related to service and a VA examination in April 1996 resulted in a diagnosis of PTSD related to service. The provisions of 38 C.F.R. § 3.157 commence with notation of the general rule that the effective date of compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is the later. However, this regulation goes on to provide that receipt of clinical reports of examination or hospitalization may serve as informal claims "for increase or to reopen." The date of receipt of such clinical evidence may serve to form the basis for an earlier effective date for the subsequent award of VA benefits if such benefits derive from (1) a claim for increased evaluation or (2) an application to reopen a previously denied claim. As aptly pointed out by the RO in its August 1996 statement of the case, the provisions of this regulation are inapplicable to the veteran's appeal. He filed an initial and original claim for service connection for PTSD in February 1996 and that claim was allowed. The general rule applicable to this situation provides that the effective for the grant of service connection will be the date of claim or the date entitlement arose, whichever is the later. The RO made benefits payable from the date of receipt of the claim, thus conceding that the date entitlement arose was earlier than the date of receipt of claim. As noted above, the veteran commenced receiving treatment by VA in November 1995. As noted above, the Board concurs with the RO that evidence of treatment in November 1995 does not provide a basis for the award of an earlier effective date in accordance with 38 C.F.R. § 3.157 because that regulation only refers to the acceptance of such evidence as an informal claim supporting the award of an earlier effective date in claims for an increased evaluation or in claims to reopen previously disallowed claims. Neither of those circumstances was applicable because the veteran's original claim for service connection for PTSD had been allowed. There was not a pending claim for an increased evaluation and a claim for service connection for PTSD had not previously been denied. Accordingly, no earlier effective date for the award of service connection for PTSD is warranted under any applicable laws or regulations. In July 1997, the VA General Counsel issued an opinion which held that the addition of PTSD in the rating schedule was a "liberalizing VA issue" for purposes of 38 C.F.R. § 3.114(a). See VAOPGCPREC 26-97. The diagnosis of PTSD was added to the rating schedule, effective in April 1980. However, an effective date prior to the date of claim cannot be assigned under § 3.114(a), unless the claimant met all eligibility criteria for the liberalized benefit on April 11, 1980, the effective date of the regulatory amendment adding the diagnostic code for PTSD, and such eligibility existed continuously from that date to the date of claim for administrative determination of entitlement. Id. No evidence is of record which reflects that the veteran met all eligibility criteria for an award of service connection for PTSD as of the April 1980 effective date that PTSD was added to the rating schedule. The veteran had no valid diagnosis of PTSD related to military service on file at that time or for many years thereafter. Accordingly, an earlier effective date based upon the fact that PTSD was added to the rating schedule in April 1980 is not warranted. ORDER Entitlement to an effective date prior to February 26, 1996, for a grant of service connection for PTSD is denied. Gary L. Gick Member, Board of Veterans' Appeals