Citation Nr: 1137021 Decision Date: 09/30/11 Archive Date: 10/11/11 DOCKET NO. 09-18 307 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an effective earlier than April 27, 2005, for the grant of service connection for an anxiety disorder, not otherwise specified (NOS), (claimed as posttraumatic stress disorder (PTSD)). 2. Entitlement to an initial disability evaluation in excess of 10 percent for an anxiety disorder, NOS, claimed as PTSD. REPRESENTATION Appellant represented by: Robert W. Legg, Attorney-at-Law ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from January 1969 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Huntington, West Virginia, which granted service connection for an anxiety disorder, NOS, claimed as PTSD, and assigned a disability evaluation of 10 percent with an effective date of April 27, 2005. Thereafter, the Veteran appealed the assigned disability evaluation and the effective date of the grant of service connection. The issue of entitlement to a higher initial disability evaluation for an anxiety disorder, NOS, (claimed as PTSD) is remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his claim for an anxiety disorder, NOS, (claimed as PTSD) has been pending and has been shown to be present since the date of receipt of the initial application for service connection on July 26, 2004. CONCLUSION OF LAW An effective date of July 26, 2004, for the grant of service connection and assignment of a 10 percent disability evaluation for an anxiety disorder, NOS, (claimed as PTSD) is warranted. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Introductory Matters In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). As it relates to the issue of entitlement to an effective date earlier than April 27, 2005, for the grant of service connection for an anxiety disorder, NOS, (claimed as PTSD), the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decisions on this matter, further assistance is not required to substantiate that element of the claim. Earlier Effective Date Generally, under applicable criteria, the effective date of an award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Pursuant to 38 U.S.C.A. § 5110(a), the effective date of an award based on an original claim for benefits shall not be earlier than the date of receipt of application therefor. In addition, 38 U.S.C.A. § 5101(a) provides in relevant part: A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual. Both of the statutes clearly establish that an application must be filed. Pertinent law and regulation also provide that the effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). 38 C.F.R. § 3.155 has the important function of making clear that there is no set form that an informal written claim must take. All that is required is that the communication indicate an intent to apply for one or more benefits under the laws administered by the Department, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence; the claimant is required to submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire, complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat or similarly strenuous conditions, and is consistent with the probable results of such known hardships. 38 C.F.R. § 3.102. Accompanying a statement in support of claim received from the Veteran on July 26, 2004, were treatment records and statements from several private physicians. In a May 2004 letter, the S. Lerfeld, M.D., indicated that the Veteran had been treated at his office since November 2000 and had diagnoses of bipolar disorder, depressed type; PTSD; past alcohol abuse; and histrionic personality disorder. In a statement in support of claim received on October 6, 2004, the Veteran claimed service connection for PTSD. In a December 2004 rating determination, the RO denied service connection for PTSD. In February 2005, the Veteran filed a notice of disagreement with the denial of service connection for PTSD. In March 2005, the Veteran forwarded a statement in support of claim and a completed PTSD questionnaire. In a statement in support of claim received on April 27, 2005, the Veteran indicated that he withdrew his appeal on the denial for PTSD. He indicated that on March 11, 2005, a PTSD questionnaire was submitted. However, he then stated that he desired to reopen his claim for PTSD with new and material evidence provided on PTSD questionnaire. In an April 2006 rating determination, the RO continued the previous denial of service connection for PTSD. In February 2007, the Veteran, through his attorney, filed a notice of disagreement. Following a June 2008 VA examination, the RO, in a June 2008 rating determination, granted service connection for an anxiety disorder, NOS, (claimed as PTSD) and assigned a 10 percent disability evaluation with an effective date of April 27, 2005. In his December 2008 notice of disagreement, the Veteran's attorney indicated that the Veteran first filed for service connection for his combat psychiatric problems on July 26, 2004. He also noted that the Veteran filed a notice of disagreement with the December 2004 rating determination in February 2005, within one year of the December 2004 rating determination. He observed that the claims file did not contain a statement of the case on that issue. Counsel argued that the Veteran had an open and pending claim since July 26, 2004, since the December 2004 rating determination never became final. He observed that the effective date of an initial claim was the date of claim or the date entitlement arose, whichever was the later. He submitted that the latter date was the date of claim, July 26, 2004. In the May 2009 statement of the case, the RO indicated found that service connection for anxiety disorder, NOS, was established effective April 27, 2005, which was the date of the Veteran's receipt of his statement in support of claim indicating that he wanted to reopen his claim for PTSD with new and material evidence provided on PTSD questionnaire. The RO found that in the April 2005 statement in support of claim, the Veteran indicated that he withdrew his appeal on the denial for PTSD. Therefore, the prior claim had not remained open. The effective date was shown to be correct as April 27, 2005, the date of the reopened claim. In his May 2009 substantive appeal, the Veteran through counsel argued that the original claim had remained pending, and noted that the central rationale for the earlier claim denial was a lack of verified stressors. He noted that the putatively new and material evidence that verified stressors was a unit history, and 3.156(c) provided that when a unit history was used to verify a stressor, the effective date for a PTSD award was the date of the initial claim. The crucial document with regard to the issue of an earlier effective date for service connection for an anxiety disorder, NOS, claimed as PTSD, is the statement in support of claim received on April 27, 2005. While the Veteran initially indicated that he withdrew his claim for PTSD, he then stated that he wished to reopen it in the next sentence with new and material evidence. The Veteran did not request service connection for a different psychiatric disorder at that time, rather he claimed service connection for the same exact disorder that was currently on appeal. The issue remained open and on appeal at that time based upon the February 2005 notice of disagreement, that was filed with the December 2004 rating determination. The Board reads the April 27, 2005, statement in support of claim as a request to continue on with the appeal on the issue of service connection for PTSD. Moreover, the Veteran indicated that he withed to submit further evidence in support of his claim for PTSD at that time. To allow a claim to be dismissed and simultaneously reopened at the same time based upon statements in the same document would not be interpreting the Veteran's claim in light which is most favorable to him. As noted above, when, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. Resolving reasonable doubt in favor of the Veteran, the Board views the April 27, 2005, statement in support of claim as the Veteran expressing his desire to continue on with his appeal relating to the December 2004 denial of service connection for PTSD. Having viewed the April 27, 2005, statement in such light, the Board finds that the Veteran initially filed his claim for a psychiatric disorder, claimed as PTSD, on July 26, 2004. As noted above, the effective date of an award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. In this case, the Veteran filed his initial claim for service connection for a psychiatric disorder, claimed as PTSD, on July 26, 2004, with evidence being supplied at that time showing a diagnosis of PTSD prior to this date. Thus, the later date would the date of claim, which is July 26, 2004. Therefore, an effective date of July 26, 2004, for the grant of service connection for an anxiety disorder, NOS, claimed as PTSD, is warranted. ORDER An effective date of July 26, 2004, for the grant of service connection and assignment of a 10 percent disability evaluation for an anxiety disorder, NOS, claimed as PTSD, is granted. REMAND The last comprehensive VA psychiatric examination afforded the Veteran occurred in June 2008. As part of his May 2009 substantive appeal, the Veteran's attorney indicated that based upon the conversations that he had had with the Veteran in the past year, worse symptomatology was now demonstrated. He requested that the Veteran be reevaluated to determine the current severity of his anxiety disorder. VA is obligated to afford a veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). The Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC will schedule the Veteran for a VA examination to assess the current manifestations of his anxiety disorder, NOS, also claimed as PTSD. The following considerations will govern the examination: a. The claims folder, and a copy of this remand, must be reviewed by the examiner in conjunction with the examination, and the examiner must acknowledge this review in any report generated as a result of this remand. All indicated tests and studies must be performed and all findings must be reported in detail. b. The examiner must respond to the below inquiries: (i) In accordance with established VA protocols, the examiner must report the severity of the Veteran's service-connected anxiety disorder, NOS, including the effects of the disorder on activities of daily living and a GAF score. The examiner should reconcile the diagnoses and specify which symptoms are associated with each of the disorder(s). If certain symptomatology cannot be dissociated from one disorder or another, it should be so indicated. c. In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. The examiner is to specifically address in his or her conclusion the issue contained in the purpose of the examination- evaluation of the severity of the Veteran's service-connected anxiety disorder, NOS, also claimed as PTSD. 2. The Veteran must be advised in writing that it is his responsibility to report for the VA examination, to cooperate with the development of her claim, and that the consequences for failure to report for a VA examination without good cause include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). If the Veteran does not report for any examination, documentation must be obtained that shows that notice scheduling the examination was sent to his last known address prior to the date of the examination. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. The RO/AMC must ensure the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action must be undertaken before the claims file is returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 4. The RO/AMC must undertake any other development and action it deems necessary and readjudicate the claim. If the benefit sought on appeal is not granted, the Veteran's attorney should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply. 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 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. 2010). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs