Citation Nr: 0800024 Decision Date: 01/02/08 Archive Date: 01/09/08 DOCKET NO. 05-13 136 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUES 1. Entitlement to restoration of an effective date of March 30, 1968 for the grant of service connection for PTSD, to include whether an April 2007 RO decision that found clear and unmistakable error in its April 2002 decision granting the March 30, 1968 effective date was itself clearly and unmistakably erroneous. 2. The appropriate rating for the veteran's PTSD from March 30, 1968 to April 17, 2002. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The veteran had active service in the United States Army from March 1966 to March 1968, to include combat duty in Vietnam. This matter originally comes before the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which determined that the veteran was entitled to an earlier effective date of March 1968, for the grant of service connection for his PTSD. The PTSD was rated 10 percent from March 1968 through April 16, 2002 and the rating of 70 percent thereafter was confirmed. The veteran filed his original claim for service connection for multiple disorders, to include a nervous disorder, on April 3, 1968, within a few days of his separation from service. An October 2002 RO decision granted service connection and assigned a 70 percent rating for PTSD, effective from April 17, 2002 or the date of receipt of the original claim for service connection for PTSD. As noted above, an RO decision in February 2004 found that the veteran was entitled to an earlier effective date for his service-connected PTSD. The RO assigned the effective date for service connection as March 30, 1968 or the day after the veteran's separation from service based upon a finding that he filed his original claim for service connection for a nervous disorder within one year of his discharge from service. The RO assigned an effective date of 10 percent for the veteran's PTSD from March 30, 1968 through September 10, 2001 and a 70 percent rating thereafter. The veteran appealed for a rating in excess of 10 percent for PTSD prior to September 11, 2001. An April 2007 RO decision found that its April 2002 decision was clearly and unmistakably erroneous in granting an earlier effective date for service connection for PTSD on the basis that receipt of the original claim for service connection for PTSD was April 17, 2002. Thus, this latter date was assigned as the correct effective date. The veteran's PTSD has remained rated at 70 percent from April 17, 2002. Given the above procedural history, the issue currently before the Board is more accurately styled as entitlement to restoration of an effective date of March 30, 1968 for the grant of service connection for PTSD, to include whether an April 2007 RO decision that found clear and unmistakable error in its April 2002 decision granting the March 30, 1968 effective date was itself clearly and unmistakably erroneous. The instant Board decision restores March 30, 1968 as the correct effective date for the grant of service connection for PTSD. The issue of the appropriate rating or ratings for PTSD from March 30, 1968 through April 16, 2002 is addressed in the remand appended to this decision. This latter matter is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT 1. The veteran, who engaged in combat with the enemy and sustained serious combat injuries, filed his original claim for service connection for a nervous disorder in April 1968 or within several days of his separation from service; the RO failed to develop or adjudicate the claim. . 2. An RO decision in October 2002 granted service connection for PTSD, effective from September 11, 2001. 3. An April 2004 RO decision granted an earlier effective date of March 30, 1968 for the grant of service connection for PTSD. 4. An April 2007 decision by the RO determined that its April 2004 decision granting an earlier effective date of March 30, 1968 was clearly and unmistakably erroneous; this latter decision assigned an effective date of April 17, 2002. 5. The April 2004 RO decision granting an earlier effective date of March 30, 1968 for the grant of service connection for PTSD, based upon the finding that the original claim for service connection was received within days of service, was not undebatably erroneous. CONCLUSION OF LAW Restoration of an effective date of March 30, 1968, for the grant of service connection for a nervous disorder, which was eventually diagnosed as PTSD, is warranted. 38 U.S.C.A. § 5110(a) (West 2002) 38 C.F.R. § 3.400(b) (2) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim. See 38 C.F.R. § 3.159. Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits is issued by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). Legal Criteria Under governing law, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). Analysis The veteran was a combat infantryman with the U.S. Army in Vietnam, who in March 1967 stepped on an anti-personnel mine and sustained multiple serious shell fragment wounds. He was treated in Vietnam and was eventually evacuated to Ft. Ord, California, where he spent the remainder of his military service in convalescence. Service connection is in effect for PTSD as a result of the veteran's engaging in combat with the enemy and sustaining significant shell fragment wounds in combat. His PTSD is rated 70 percent disabling from April 17, 2002. The veteran, upon being granted service connection for PTSD, petitioned for an earlier effective date, which was subsequently granted to September 11, 2001, the date an increase in severity was noted, but the RO subsequently determined that the correct effective date was March 30, 1968, the day after the veteran's separation from service as he filed a claim for service connection for a nervous disorder within days of his discharge from service. See February 2004 RO decision. The RO correctly noted that the veteran's original claim was never addressed as a psychiatric condition. The RO, in an April 2007 rating decision, determined that its February 2004 decision granting an effective date for the grant of service connection for PTSD of March 30, 1968 was clearly and unmistakably erroneous. The RO determined that the correct effective date was April 17, 2002 or the date of receipt of what was called the original claim for service connection for PTSD. There is a three-part test to determine whether a prior decision is the product of CUE: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Wilson v. West, 11 Vet. App. 383, 386 (1998). After the veteran filed his original claims for service connection in March 1968, immediately after his separation from service, the RO granted service connection for neuropathy of the brachial plexus. The RO has held that the veteran's original claim for service connection for a nervous disorder was addressed as neuropathy in an upper extremity and denied without timely appeal. However, the Board finds that the veteran's original claim for service connection for a nervous disorder was not adjudicated by the RO at that time or at any time prior to October 2002. In his original application for VA compensation benefits received by the RO in April 1968, the veteran clearly filed claims for service connection for residuals of a nerve injury and a nervous disorder. Under these circumstances, the latter claim can only be construed as one for service connection for a psychiatric disorder. It is evident that the RO simply failed to develop and adjudicate that claim. The RO has also determined that the veteran's claim regarding a generalized "nervous condition" was not a claim for PTSD, and therefore it was not pending at the time of the grant with the effective date set in 2002. However, the veteran filed his claim for service connection in 1968 and at that time post-traumatic stress disorder was not listed in the Diagnostic and Statistical Manual of Mental Disorders. In the Board's judgment, a claim for service connection for a nervous or psychiatric disorder filed by a combat veteran in 1968 must be construed as including combat fatigue or what eventually was classified as post-traumatic stress disorder. The other basis for the RO's finding that the April 2004 grant of an earlier effective date of March 30, 1968 was clearly and unmistakably erroneous, was citation to Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). In that case, the United States Court of Appeals for the Federal Circuit found that where a veteran files more than one claim with the RO at the same time, as in this case, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. The proper remedy under such circumstances is to file a timely NOD as to the RO's failure to address that claim. As noted above, a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel, supra; Russell, supra; Wilson, supra. The RO determined that there was CUE in its February 2004 decision, more than 2 years prior to the Federal Circuit's decision in Deshotel. Under 38 C.F.R. § 3.400(B)(2), the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. This severely injured combat veteran filed his original claim for service connection for a psychiatric disorder within days of his separation from service. VA practice prior to Deshotel was to treat unadjudicated claims as pending claims regardless of the amount of time that had elapsed unless the veteran had abandoned the claim. There is no indication here that the veteran abandoned the claim in question (see 38 C.F.R. § 3.158); the RO never responded to the specific claim for service connection for a psychiatric disorder. Congress has created the veterans' benefits system to be both "paternalistic" and "uniquely pro-claimant." See Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002); Nolen v. Gober, 222 F.3d 1356 (Fed. Cir. 2000); Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000). Given the facts in this case, the undersigned will not conclude that there was undebatable error in assigning an effective date of March 30, 1968 for a grant of service connection for PTSD under the law that existed at the time of the prior adjudication in question. Thus, the RO's assignment of an effective date in March 1968 does not constitute CUE, and the April 2007 decision finding that it did was itself clearly and unmistakably erroneous. As such, the effective date of March 30, 1968 is restored for the grant of service connection for PTSD. The issue of the appropriate rating for the veteran's PTSD between March 30, 1968 and April 17, 2002 is addressed in the remand below. ORDER Restoration of an effective date of March 30, 1968, for the grant of service connection for PTSD is warranted. REMAND The Board in the above decision has restored the effective date for the grant of service connection for PTSD to March 30, 1968. The question that remains is the appropriate disability rating for the veteran's PTSD from March 30, 1968 to April 17, 2002. Accordingly, the case is REMANDED to the AMC in Washington, D.C. for the following action: 1. The AMC/RO must contact the veteran and determine whether there are any relevant VA medical records dated prior to April,17, 2002 that have not been obtained, particularly any records relating to evaluation or treatment for a psychiatric disorder. Any such records must be obtained and associated with the claims file. 2. After ensuring compliance with VCAA, to include advising the veteran that if he has any additional records which might aid in substantiating his claim, that he may submit them for consideration, and conducting any other indicated development, the AMC/RO must assign an appropriate disability rating or ratings for the veteran's PTSD for the period from March 30, 1968 to April 17, 2002. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the veteran's appeal. 38 C.F.R. § 20.1100(b) (2007). Department of Veterans Affairs