Citation Nr: 1118303 Decision Date: 05/12/11 Archive Date: 05/17/11 DOCKET NO. 09-28 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date prior to December 14, 2007, for the award of service connection for PTSD. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for PTSD and assigned a 30 percent initial rating effective December 14, 2007. He responded with a timely notice of disagreement regarding both the effective date assigned and the initial rating. The issue of entitlement to an increased initial rating for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's initial claim of service connection for PTSD was received by VA on May 18, 2005. 2. The August 2008 grant of service connection for PTSD was predicated in whole or part upon the receipt of service department records corroborating an in-service stressor. CONCLUSION OF LAW The criteria for an effective date of May 18, 2005, for an award of service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5110 (West 2002); 38 C.F.R. §§ 3.156, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). For the reasons to be discussed below, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). VA has made all reasonable efforts to assist the Veteran in the development of his claim, has notified him of the information and evidence necessary to substantiate the claim, and has fully disclosed VA's duties to assist him. In June 2005, July 2006, June 2007, and April 2008 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, the April 2008 letter provided him with the general criteria for the assignment of an effective date and initial rating. Id. Furthermore, as the issue for an earlier effective date is a downstream issue from that of service connection, the appellant bears the burden of demonstrating prejudice resulting from defective VCAA notice. See Goodwin v. Peake, 22 Vet. App. 128 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). The Board further notes that, in the present case, initial notice was issued in April 2008, prior to the August 2008 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board next finds that VA has complied with the duty to assist by aiding the appellant in obtaining evidence. It appears that all known and available records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical records. He has also been afforded VA medical examination on several occasions, most recently in August 2008. The Board is not aware, and the Veteran has not suggested the existence, of any additional pertinent evidence not yet received. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by any failure of VA in its duties to notify and assist him, and that any such violations could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. The Veteran seeks an effective date prior to December 14, 2007, for the grant of service connection for PTSD. Generally, the effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107. A "claim" is defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The U.S. Court of Appeals for the Federal Circuit has elaborated that VA "has a duty to fully and sympathetically develop the veteran's claim to its optimum in order to determine if an informal claim had been raised. With respect to all pro se pleadings, VA [must] give a sympathetic reading to the veteran's filings by determining all potential claims raised by the evidence, applying all relevant laws and regulations." Szemraj v. Principi, 357 F.3d 1370 (2004). If VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date. Id. at 200. VA, however, is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). In the present case, in an August 2008 rating decision, service connection for PTSD was awarded from December 14, 2007. On this date the RO received an informal application to reopen a claim of service connection for PTSD. Review of the record further indicates that a prior claim of service connection for PTSD was received May 18, 2005. Although the Veteran did file several service connection claims for various disabilities in the years after service separation, he did not report a psychiatric disability or seek service connection for such a disability prior to May 2005. In response to the Veteran's May 2005 claim, the RO issued an August 2006 rating decision denying service connection for PTSD. Notice of this action was provided to the Veteran that same month, and he responded with a timely May 2007 notice of disagreement. A statement of the case was sent to him on October 2, 2007. Thereafter, he had 60 days to file a timely substantive appeal. 38 U.S.C.A. § 7105(d)(3). A VA Form 9 was received on December 14, 2007, beyond 60 days after the mailing of the statement of the case; thus, the RO concluded this substantive appeal was untimely, and closed the prior pending appeal. The December 2007 VA Form 9 was accepted, however, as an application to reopen the claim of service connection for PTSD. In an August 2008 rating decision, service connection for PTSD was granted, effective December 14, 2007. The Veteran then initiated an appeal of this assigned effective date. In support of his claim, the Veteran has argued that because the August 2008 grant of service connection was based upon the receipt of unit history records which confirmed the Veteran's stressor events during service, 38 C.F.R. § 3.156(c) applies. Generally, a previously and finally-denied claim may be reopened on the submission of new and material evidence. 38 C.F.R. § 3.156. This regulation states, however, that when the newly-submitted evidence includes official service department records in existence at the time of the prior denial but not previously considered, such a claim shall be considered directly on the merits. Additionally, if service connection is subsequently granted, the effective date shall be the date entitlement arose, or the date the previously-denied claim was received, whichever is later. 38 C.F.R. § 3.156(c)(3). The Board notes that the prior August 2006 denial was based on the lack of stressor corroboration within the record confirming the Veteran's claimed exposure to a stressor event. In May 2008, the Veteran's representative submitted official U.S. Army operational reports that confirmed the Veteran's unit engaged in direct combat with the enemy while stationed in Vietnam. Based on these records, confirming the Veteran's combat participation while stationed in Vietnam, the RO granted service connection for PTSD in August 2008, effective December 14, 2007, as noted above. The Veteran argues that because this grant was based on the receipt of official service department records in existence at the time of the prior denial but not previously considered by VA, the correct effective date should be the date the previously-denied claim was received, pursuant to 38 C.F.R. § 3.156(c)(3). During the pendency of the Veteran's initial claim of service connection for PTSD, 38 C.F.R. § 3.156(c) was amended, effective October 6, 2006, to clarify the regulation and make it consistent with current practices. 71 Fed. Reg. 52457 (Sept. 6, 2006). Nevertheless, as the U.S. Court of Appeals for Veterans Claims (Court) recently determined in Mayhue v. Shinseki [--- Vet. App. ---, No. 09-0014 (U.S. Vet. App. Jan. 18, 2011)], both the former and revised versions of the regulation offer the possibility of entitlement to an earlier effective date based on the submission of service department records. See also Vigil v. Peake, 22 Vet. App. 63, 65 (2008). Thus, the Board need not differentiate between the former and revised versions of 38 C.F.R. § 3.156(c). Looking next at the facts of the present case, the Board concedes that the subsequent August 2008 grant of service connection for PTSD was based in large part on corroboration of an in-service stressor, and that evidence of a current diagnosis of PTSD had been of record prior to the August 2006 denial. Specifically, a May 2006 diagnosis of PTSD, rendered by a physician at the W.W. Hastings Indian Hospital, was received by VA in June 2006. Additionally, in May and June 2006 letters, the Veteran described stressor incidents which arguably contained sufficient detail to warrant submission to the U.S. Army and Joint Services Records Research Center (Records Center) for verification. Taken together, the Board concludes 38 C.F.R. § 3.156(c) is applicable to the present appeal, and an earlier effective date of May 18, 2005, is warranted, as that represents the date of receipt at the RO of the Veteran's initial claim of service connection for PTSD. See 38 C.F.R. § 3.400. As discussed above, because the subsequent award of service connection for PTSD in August 2008 was based upon the receipt of service department records which were in existence at the time of the August 2006 denial, an earlier effective date may be granted based on 38 C.F.R. § 3.156(c). An effective date prior to May 18, 2005, is not, however, warranted. As conceded by the Veteran's representative in a December 2008 letter, the May 18, 2005, claim represents the initial claim of service connection for PTSD, and no prior claim, formal or informal, is of record or has been alleged by the Veteran. The Board is cognizant that generally, claims are to be broadly construed, based on the claimant's description of the claim, reported symptoms, and other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Nevertheless, although the Veteran filed several post-service service connection claims for various disabilities, none of these claims were for, or suggested the existence of, PTSD, nervousness, depression, or any other psychiatric disability. Therefore, the Board finds an effective date prior to May 18, 2005, is not warranted, as this represents the earliest date of receipt of record for a service connection claim for PTSD or any psychiatric disability. In conclusion, the evidence supports an earlier effective date of May 18, 2005, and no earlier for the award of service connection for PTSD. As a preponderance of the evidence is against the award of an effective date prior to May 18, 2005, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER An effective date of May 18, 2005, and no earlier for the award of service connection for PTSD is granted. REMAND The Veteran seeks an initial rating in excess of 30 percent for his PTSD. He was last afforded VA examination of this disability in August 2008. Since that time, the Veteran's representative has alleged this disability has worsened in severity, and the August 2008 VA examination does not accurately reflect the Veteran's level of impairment. For example, the examination report indicated the Veteran was employed at that time, but according to his representative, the Veteran has not worked for many years. Where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See 38 U.S.C.A. § 5103A(d); Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA psychiatric examination to determine the current level of impairment resulting from his service-connected PTSD. The claims file must be made available to the examiner for review in conjunction with this examination. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should specifically render findings with respect to the existence and extent (or frequency, as appropriate) of such symptoms as: memory loss; depressed mood; anxiety; panic attacks; sleep impairment; impaired judgment, speech, impulse control and/or thought processes; neglect of personal hygiene and appearance; homicidal or suicidal ideation; and delusions and/or hallucinations. The examiner should render a multi-axial diagnosis, including assignment of a Global Assessment of Functioning (GAF) scale score representing the level of impairment due to the Veteran's PTSD, and an explanation of what the score means. The examiner should also render an opinion, consistent with sound medical principles, as to whether, without regard to any nonservice-connected disabilities or the Veteran's age, it is at least as likely as not (i.e., there is a 50 percent or greater probability) that his service-connected disabilities render him unable to obtain or retain substantially gainful employment. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed report. 2. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The appellant 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 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. 2010). ______________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs