Citation Nr: 0819858 Decision Date: 06/17/08 Archive Date: 06/25/08 DOCKET NO. 96-22 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than October 1, 1990, for the grant of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The veteran served on active duty from March 1961 to November 1963 and from May 1965 to May 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2007, the veteran filed a motion for advancement on the docket. Under the provisions of 38 U.S.C.A § 7107 (West 2002) and 38 C.F.R. § 20.900(b), (c) (2007), appeals must be considered in docket number order, but may be advanced if good or sufficient cause is shown. In November 2007, however, pursuant to Vargas-Gonzalez v. Principi, 15 Vet. App. 222 (2001), the appeal was assigned the original docket number on the basis that the appeal from the effective date for PTSD was a 'downstream' issue arising out of the veteran's prior issue on appeal. Thus, the subsequent request for advancement on the docket based on serious illness was found moot by the Board. FINDINGS OF FACT 1. Unappealed RO rating decisions in July and August 1989 denied the veteran's claim of entitlement to service connection for PTSD. 2. The medical evidence shows that the veteran was initially diagnosed with PTSD in October 1990. 3. The veteran filed his application to reopen the claim of entitlement to service connection for PTSD in April 1991. 4. In a January 2003 rating decision, the RO granted service connection for PTSD, effective October 1, 1990, the date of diagnosis of PTSD. CONCLUSION OF LAW The criteria for an effective earlier than October 1, 1990, for a grant of service connection for PTSD, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.114, 3.155(a), 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The veteran's PTSD claim arises from his disagreement with the effective date following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Further, because the application of the law to the undisputed facts is dispositive of the appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). II. Earlier Effective Date for PTSD Generally, the effective date for the grant of service connection 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). If, however, a claim of entitlement to service connection is received within a year following separation from service, the effective date will be the day following separation. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). If a claimant 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, e.g., 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If the claimant does not initiate an appeal within one year, or if the claimant fails to perfect the appeal by filing a timely substantive appeal, or if the claimant initiates a timely appeal and the appeal is later withdrawn or denied, the disallowance becomes final. See 38 C.F.R. §§ 20.204, 20.302, 20.1100, 20.1103. 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 U.S.C.A. §§ 5110, 5108; 38 C.F.R. §§ 3.156(c), 3.400(q)(r). It is the "unequivocal command" of 38 U.S.C.A. § 5110(a) that the effective date of benefits cannot be earlier than the filing of an application therefor, Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999), unless an exception applies, the RO granted the earliest effective date for a grant of service connection for PTSD that the law allows. One exception, made under certain circumstances, is in regards to laws that liberalize entitlement to benefits: Subject to the provisions of [38 U.S.C. § 5101], where compensation, dependency and indemnity compensation or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier. 38 U.S.C.A. § 5110(g). The implementing regulation, 38 C.F.R. § 3.114(a), provides: Where pension, compensation, dependency and indemnity compensation, or the monetary allowance under 38 U.S.C. 1805 for a child suffering from spina bifida who is a child of a Vietnam veteran is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, dependency and indemnity compensation, or the monetary allowance under 38 U.S.C. 1805 for a child suffering from spina bifida who is a child of a Vietnam veteran is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase. (1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. (2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. Another exception regards reconsideration of decisions on the basis of newly discovered service department records. It is noted that during the pendency of the appeal, revisions were made to 38 C.F.R. §§ 3.156(c) and 3.400(q), effective on October 6, 2006. 38 C.F.R. § 3.156(c) was revised to establish clearer rules regarding reconsideration of decisions on the basis of newly discovered service department records. The substance of 38 C.F.R. § 3.400(q)(2) is now included in the revised § 3.156(c). Prior to the revision, 38 C.F.R. § 3.400(q)(2) governed the effective date of benefits awarded when VA reconsidered a claim based on newly discovered service department records. The prior 38 C.F.R. § 3.400(q)(1) is redesignated as new § 3.400(q)(1) and (2) without substantive change. See 70 Fed. Reg. 35388 (2005). The Board therefore finds there is no prejudice to the veteran in considering the revised 38 C.F.R. § 3.156(c) prior to giving the RO an opportunity to review the appeal. 38 C.F.R. § 19.31. The provisions of 38 C.F.R. §§ 3.156(c) and 3.400(q)(2), in effect prior to October 6, 2006, together establish an exception to the general effective date rule in 38 C.F.R. § 3.400 which provides that the effective date of an award of benefits will be the date of claim or the date entitlement arose, whichever is later. The exception applies when VA receives official service department records that were unavailable at the time that VA previously decided a claim for a benefit and those records lead VA to award a benefit that was not granted in the previous decision. Under this exception, the effective date of such an award may relate back to the decision of the original claim or date entitlement arose, which ever is later, even though the decision on that claim may be final under 38 C.F.R. § 3.104. As noted, 38 C.F.R. § 3.156(c) was revised to clarify VA's current practice that when VA receives service department records that were unavailable at the time of the prior decision, VA may reconsider the prior decision, and the effective date assigned will relate back to the date of the original claim, or the date entitlement arose, whichever is later. The pertinent revisions include removal of the "new and material" requirement in 38 C.F.R. § 3.156(c). Because the rule regarding effective date of an award of benefits based all or in part on newly-discovered service department records is now included in 38 C.F.R. § 3.156(c), the effective date provision was removed from 38 C.F.R. § 3.400(q). Therefore, effective on or after October 6, 2006, 38 C.F.R. § 3.156(c) provides that notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Further, 38 C.F.R. § 3.156(c)(i)(3) provides that an award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. The veteran seeks entitlement to an effective date earlier than October 1, 1990, for the grant of service connection for PTSD. The veteran contends that service connection should be granted from May 13, 1976, the date of his first claim of entitlement to service connection for a nervous condition. The record shows that the veteran's original claim of entitlement to service connection for a nervous disorder was received on May 17, 1976. The veteran's claim for service connection was denied by a rating decision dated in June 1976. A letter was sent to the veteran, informing him of the denial of service connection, the same month. Subsequently, the record shows that the veteran filed a claim of entitlement to service connection for chronic depressive neurosis, which was received by VA on February 11, 1977. The veteran included with his application a copy of his Long Term Disability Claim filed with Connecticut General Life Insurance Company. In March 1977, the RO, interpreting the veteran's claim as a claim for pension benefits, granted the veteran a nonservice-connected pension for chronic depressive neurosis, effective September 4, 1976. The veteran was notified of the award of pension benefits in an award letter dated in March 1977. In April 1989, the veteran submitted an application to reopen a claim of entitlement to service connection for PTSD. In a rating decisions dated in July 1989 and August 1989 the RO denied the veteran's claim. The veteran did not file an appeal regarding this rating decision and, therefore, the decision became final. In April 1991, the veteran, again, submitted an application to reopen a claim of entitlement to service connection for PTSD. In a rating decision dated in April 1991, the RO denied the veteran's application to reopen the claim for service connection for PTSD. The veteran filed a timely notice of disagreement (NOD) with the RO's rating decision and a statement of the case (SOC) regarding the claim was issued in August 1991. The veteran perfected his appeal by submitting a substantive appeal on a VA Form 9, received by the VA in October 1991. In October 1995, the RO granted service connection for PTSD with an evaluation of 10 percent disabling from July 21, 1993. In December 1995 he filed an NOD as to the effective date of service connection for PTSD, and in January 1996 the RO issued him an SOC. In March 1996, the RO granted an earlier effective date of October 1, 1990, for PTSD. The veteran filed his current claim of entitlement to an effective date earlier than October 1, 1990, for the grant of service connection for PTSD, in September 2004. The RO, in a rating decision dated in May 2005 denied the veteran's claim. The veteran filed a NOD regarding this claim, which was received by the RO in June 2005. The RO issued a SOC regarding this claim in February 2006 and the veteran filed his substantive appeal in April 2006. A review of the claims folder reveals that the veteran has had a diagnosis of a psychiatric disorder from as early as April 1976. It is undisputed that the veteran was first diagnosed with PTSD in October 1990. The veteran's application to reopen his claim of entitlement to service connection for PTSD, upon which service connection was ultimately granted, was filed in April 1991. However, a VA treatment record reflecting a diagnosis of PTSD dated October 1, 1990, was construed as an informal claim for PTSD because the first documented diagnosis of PTSD took place in a VA facility and this informal claim was preceded by a denied claim for entitlement to service connection for PTSD and followed within six months by a specific claim for service connection for PTSD. In reaching this conclusion, the Board emphasizes that an effective date of an award of service connection is not based on the earliest medical evidence, but rather on the date that the application upon which service connection was eventually awarded was filed with VA. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). Here, the record reflects that the appellant did file a formal application for service connection for PTSD prior to October 1, 1990, in April 1989, however, there is no evidence of a diagnosis of PTSD prior to October 1, 1990. Thus, there is no basis to assign an earlier effective date because the RO has already awarded the appellant the earliest date available under the law. The veteran argues that his claim, received by VA on February 11, 1977, within one year of his original denial, for chronic depressive neurosis, was never adjudicated by the RO and, therefore, remains open. As indicated above, the veteran's claim received by VA on February 11, 1977, was adjudicated in a rating decision dated in March 1977 that granted the veteran nonservice-connected pension benefits, effective September 4, 1976. 38 C.F.R. § 3.151(a) provides that a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA (38 U.S.C.A. § 5101(a)). A claim by a veteran for compensation may be considered a claim for pension; and a claim by a veteran for pension may be considered a claim for compensation. The greater benefit will be awarded, unless the claimant specifically elects the lesser benefit. 38 C.F.R. § 3.151(a). The word "may" signifies that the Secretary is instructed to exercise his discretion under the regulation in accordance with the contents of the application and the evidence in support of it. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); see also Willis v. Brown, 6 Vet. App. 433, 435 (1994) (the operative word "may," in the regulation, clearly indicates discretion). The instant case is distinguishable from Isenhart v. Derwinski, 3 Vet. App. 177 (1992) (holding that a claim for dependency and indemnity compensation (DIC) benefits constitutes a claim for death pension) because that case involved the interpretation of an entirely different regulation than the one in question. The Isenhart case involved the interpretation of 38 C.F.R. § 3.152(b)(2), a regulation relating to claims for death benefits, not disability compensation. In contrast to 38 C.F.R. § 3.151(a), the language in 38 C.F.R. § 3.152(b)(2) is not discretionary but mandatory: "A claim by a parent for compensation or dependency and indemnity compensation will also be considered to be a claim for accrued benefits." 38 C.F.R. § 3.152(b)(2). This mandatory language is absent from 38 C.F.R. § 3.151(a). Stewart v. Brown, 10 Vet. App. 15, 18 (1997). In this case, the Secretary exercised his discretion regarding the nature of the claim filed by the veteran in February 1977. The claim for pension and compensation followed a denial of entitlement to service connection for a nervous condition and contained no further information regarding the veteran's condition. While the initial claim dated in May 1976 provided information regarding the veteran's treatment, the February 1977 claim left those areas blank and instead completed the areas regarding dependants, income, and net worth, which, for the most part, had been left blank on the earlier claim. The claims form was also accompanied by an award letter from Connecticut General Life Insurance Company granting disability benefits for chronic depressive neurosis. The information related in the claims form, therefore, indicated that the veteran was seeking pension benefits rather than service connection. In light of the recent previous denial of entitlement to service connection for a nervous condition and the lack of new evidence which addressed the rationale for the prior denial, the claim was properly considered as one for pension benefits. The veteran was subsequently, in a rating decision dated March 1977, granted the greater benefit of nonservice- connected pension benefits at 70 percent disabled effective September 4, 1976. As to the liberalization of entitlement to benefits for PTSD, although the Board acknowledges that VA's General Counsel has held that the addition of PTSD as a diagnostic entity in the schedule for rating mental disorders was a "liberalizing VA issue" for purposes of 38 C.F.R. § 3.114(a), see VAOPGCPREC 26-97, 62 Fed. Reg. 63,604 (1997), because the veteran did not satisfy the criteria for a diagnosis of PTSD prior to October 1, 1990, he necessarily did not meet all the eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously since that time. It is undisputed in the claims folder that the veteran was diagnosed with and treated for a psychiatric disorder since as early as April 1976. It is undisputed that the veteran was not diagnosed with PTSD until October 1, 1990. It is also undisputed that the veteran, when examined by VA in June 1989, was specifically found not to have PTSD but rather major depression with paranoia or schizo-affective disorder. The Board reiterates regardless of whether VA's April 1980 promulgation of Diagnostic Code 9411 constitutes a liberalizing law or VA issue, the veteran's claim must be denied because the evidence shows that he was not clearly diagnosed as having this disability until October 1, 1990, i.e., he has not suffered from the condition since April 1980. As to the veteran's service department records, received by VA after the March 1977 rating decision became final, while the provisions of 38 C.F.R. §§ 3.156(c) and 3.400(q)(2) do establish an exception to the general effective date rule under 38 C.F.R. § 3.400, they do not support the award of an earlier effective date in this case. The veteran did not establish an entitlement to service connection for PTSD prior to October 1, 1990, the current effective date, because he was not diagnosed with PTSD until that time. Since service connection cannot be granted prior to establishment of entitlement, even reconsidering his claim denied by the March 1977 rating decision does not result in an effective date prior to October 1, 1990. ORDER Entitlement to an effective date earlier than October 1, 1990, for the grant of service connection for post-traumatic stress disorder (PTSD), is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs