Citation Nr: 1212421 Decision Date: 04/04/12 Archive Date: 04/11/12 DOCKET NO. 09-38 015 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date earlier than August 21, 2006, for the granting of entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney at Law ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant was on active duty from June 1982 to July 1992, during peacetime and Operation Desert Shield/Storm. He served in the Southwest Asia theatre-of-operations from October 31, 1990, to June 8, 1991. This appeal comes before the Board of Veterans' Appeals, hereinafter the Board, from September 2004, February 2007, and October 2008 rating decisions of the Department of Veterans Affairs (VA), San Juan, the Commonwealth of Puerto Rico, Regional Office (RO). The appellant disagreed with such decisions and subsequently perfected his appeals to the Board. It is noted that when the claim originally came before the Board, the issues that were on appeal and addressed by the Board were as follows: 1. Entitlement to an effective date earlier than August 21, 2006, for the establishment of service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to an increased initial rating in excess of 30 percent disabling for service-connected PTSD, prior to January 8, 2007, to include entitlement to individual unemployability for the entire appeal period. 3. Entitlement to service connection for hyperinsomnia with sleep apnea, also claimed as due to an undiagnosed illness. 4. Whether new and material evidence has been received to reopen a service connection claim for polyarthritis of the left lower extremities claimed as musculoskeletal and joint problems, and if so, whether service connection is warranted. 5. Whether new and material evidence has been received to reopen a service connection claim for polyarthritis of the right lower extremities claimed as musculoskeletal and joint problems, and if so, whether service connection is warranted. 6. Whether new and material evidence has been received to reopen a service connection claim for sinusitis, and if so, whether service connection is warranted. 7. Whether new and material evidence has been received to reopen a service connection claim for allergic rhinitis, and if so, whether service connection is warranted. 8. Whether new and material evidence has been received to reopen a service connection claim for refractive error claimed as loss of vision, and if so, whether service connection is warranted. 9. Whether new and material evidence has been received to reopen a service connection claim for swelling of the left face, and if so, whether service connection is warranted. Upon reviewing the evidence contained in the claims files, the Board issued a Decision/Remand in June 2011. In that action, the Board denied the appellant's claim for entitlement to an earlier effective date for the granting of service connection for PTSD. It further reopened the appellant's claims for service connection for polyarthritis of the left and right lower extremities based on the submission of new and material evidence. The remaining issues, along with the two reopened claims, were then remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. After receiving notification of the Board's action in the June 2011 Decision/Remand, the appellant appealed to the United States Court of Appeals for Veterans Claims, hereinafter the Court. The appellant asked for relief by the Court; more specifically, he prayed that the Court would vacate the Board's action with respect to the denial of an earlier effective date for the granting of service connection for PTSD. To support his assertions, the appellant, through his private attorney, submitted a Joint Motion for Partial Remand. The VA joined in the submission of the Joint Motion. Following a review of the claim, the Board's action, with respect to the granting of an earlier effective date, was vacated. This was done by the Court's adoption of the Joint Motion for Partial Remand. The claim has since been returned to the Board for review and action in accordance with the Court's Order of November 10, 2011. FINDINGS OF FACT 1. The appellant was discharged from the United States Army in July 1992. Upon release from service, he did not file a claim for VA compensation benefits including benefits for a psychiatric disorder. 2. The appellant's first claim for entitlement to service connection for PTSD was received at the RO on September 19, 2000. 3. Although a private doctor diagnosed the appellant as suffering from the symptoms and manifestations of PTSD, a VA doctor, in September 2001, found that the appellant was not suffering from PTSD. 4. Upon reviewing the claim, the RO denied the appellant's claim via a rating action issued in December 2001. 5. In May 2004, the appellant submitted a request to the RO asking that his claim for entitlement to service connection for PTSD be reopened. The appellant's claim was subsequently denied by the RO in a final September 2004 rating decision. 6. The September 2004 rating action became a final decision after the appellant failed to properly perfect his appeal in a timely manner following the issuance of a statement of the case. 7. In July 2007, the appellant once again sought to reopen his claim for entitlement to service connection for PTSD. Said claim was reopened and service connection was granted via a rating action of December 3, 2007. A 30 percent disability rating was awarded and an effective date of August 21, 2006, was assigned. 8. The RO granted service connection for PTSD in the December 2007 rating decision based in part on service department records. These records existed at the time of the initial final RO decision denying service connection in December 2001, but were not obtained (or available) and associated with the claims file at that time due to administrative error. CONCLUSION OF LAW The criteria for the assignment of an effective date of September 19, 2000, for the granting of service connection for posttraumatic stress disorder have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.156, 3.400, (2011); Mayhue v. Shinseki, 24 Vet. App. 273 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000, VA has a duty to notify a claimant of how to substantiate and a duty to assist the claimant in substantiating his claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a) (West 2002 & Supp. 2011). The decision made herein is fully favorable to the appellant. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be discussed. II. Earlier Effective Date The appellant seeks an earlier effective date for the grant of service connection for PTSD. He, through his attorney, contends that service connection should be effective as of September 19, 2000, the date that he filed his initial claim for benefits, rather than August 21, 2006, the date he filed an application to reopen the claim for this benefit. The rationale that has been argued is that the service department had the records and information that would have corroborated his claimed stressors but had not been associated with the claims file at the time of the initial final unfavorable decision ultimately resulted in a later favorable decision. Generally, the effective date of an award of compensation is fixed in accordance with the facts found, but cannot be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a) (West 2002). An evaluation and award of compensation based on a claim reopened after final disallowance thus is effective as of the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2011). An exception exists for claims reopened because new and material evidence in the form of service department records has been received, however. From June 10, 1993, to September 2006, 38 C.F.R. § 3.400(q)(2) provided that the effective date for an evaluation and award of compensation based on a claim reopened due to the receipt of new and material evidence in the form of service department records was "to agree with evaluation (since it is considered these records were lost or mislaid) or date of receipt of claim on which prior evaluation was made, whichever is later . . . ." 38 C.F.R. § 3.156(c) provided that: Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. . . . "Read together, §§ 3.156(c) and 3.400(q)(2) provided that the effective date for an award of benefits based on newly discovered service department records that were previously unavailable 'may relate back to the date of the original claim or date entitlement arose even though the decision on that claim may be final . . . .'" Mayhue v. Shinseki, 24 Vet. App. 273 (2011), quoting New and Material Evidence, 70 Fed. Reg. 35,388 (proposed June 20, 2005). Revisions to these regulations were proposed in June 2005. The purpose was "to clarify long-standing VA rules" "regarding reconsideration of decisions on the basis of newly discovered service department records" and "to include the substance of current 38 C.F.R. § 3.400(q)(2) in revised § 3.156(c)" rather than to effect substantive changes. Id. at p. 5-7, quoting New and Material Evidence, 70 Fed. Reg. 35,388 (proposed June 20, 2005) and New and Material Evidence, 71 Fed. Reg. 52,455 (September 6, 2006). The proposed revisions became effective on October 6, 2006. From that point until present, 38 C.F.R. § 3.156(c) has provided as follows: (1) 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. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the [V]eteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. (2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. (3) 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. Given that these changes were clarifying rather than substantive in nature, the United States Court of Appeals for Veterans Claims (Court) has concluded that pre-amended 38 C.F.R. § 3.156(c), like amended 38 C.F.R. § 3.156(c), "authorizes an effective date [for a reconsidered claim based on newly discovered service department records] as early as the date of the original claim." Vigil v. Peake, 22 Vet. App. 63, 65 (2008). The Board indeed can discern little real difference between pre-amended and amended 38 C.F.R. § 3.156(c). The one possible difference is amended 38 C.F.R. § 3.156(c)(2), which narrows the situations in which an effective date as early as the date of the original claim may be awarded for a reconsidered claim based on newly discovered service department records. In Mayhue, the parties disagreed on whether this provision was retroactive to the period when pre-amended 38 C.F.R. § 3.156(c) was in effect. The Court declined to address the dispute, as it found that amended 38 C.F.R. § 3.156(c)(2) was inapplicable. For the reasons explained below, the Board similarly finds that amended 38 C.F.R. § 3.156(c)(2), which relates to the responsibility of the claimant to provide sufficient information is not for application in this case. The only existing potential difference between pre-amended 38 C.F.R. § 3.156(c) and amended 38 C.F.R. § 3.156(c) thus is of no consequence. As the applicable provisions of these regulations are essentially the same, the fact that the following discussion focuses on applying the amended 38 C.F.R. § 3.156(c) for the sake of simplicity. When the appellant originally filed his claim for compensation benefits, he claimed that he was suffering from posttraumatic stress disorder, and that such a condition was caused by his service in the Kingdom of Saudi Arabia and the Sheikdom of Kuwait during Operation Desert Shield/Storm. The service personnel records show that the appellant served with the 67th Signal Battalion which was attached to the 11th Signal Brigade. Both units were stationed in the Persian Gulf theatre-of-operations, to include Dhahran, Saudi Arabia. The same personnel records indicate that the appellant was stationed in the theatre-of-operations from October 31, 1990, to June 8, 1991. The record further reveals that the appellant was probably stationed or located in Dhahran when it was hit on February 25, 1991, by a scud missile attack. As such, he was a witness to that attack. It is noted that the military records now reveal that at least one scud missile broke apart on February 25th and the remains of the missile, and the warhead, rained down upon temporary barracks close where the appellant was located. The appellant has not only claimed that he was subject to the above attack, but that when his unit worked its way up to Kuwait, he saw burnt out vehicles including an automobile containing dead civilians. It was these incidents that the appellant originally claimed were stressors that led to the development of his PTSD. It was also these incidents, or more particularly, the scud missile attack reference points and impact zone, that were not originally confirmed by the RO even though the Department of Defense had the specific information. The record indicates that a private examiner concluded that the appellant was suffering from PTSD. However, when the appellant underwent a VA examination in September 2001, the examiner thought that the appellant was not suffering from PTSD but was instead just malingering. When the RO denied the appellant's claim, not only did the RO suggest that the appellant was not suffering from a psychiatric disorder related to service but further, in its rating action of December 2001, but it further indicated that even if he was suffering from PTSD, his claimed stressors could not be validated or confirmed. In the rating action, the RO noted the following: The available evidence is insufficient to confirm that the veteran engaged in combat or was a prisoner of war. The service department was not able to corroborate the claimed stressor(s). After examining the evidence of record we find no proof of a service related stressor and service connection for PTSD is not warranted. . . . Evidence of record does not support any assertion that the veteran service in a[n] area in which a stressful event reportedly occurred. Evidence of record does not support an occurrence of a stressful event in which the veteran was a part of while in service. Evidence of record does not support the occurrence of an event that could be described as outside the range of human experience. .... . . . However, even if the diagnosis of Dr. R. evaluation would prevail, the outcome of the decision in this case would not be effected in absence of a stressor in service that could be described outside of the range of normal human experience. As such, service connection for the disorder could not be granted. Following that action, the appellant submitted additional evidence and asked that his claimed be reopened. Additional documents were obtained by the RO including copies of his VA medical records. Then in 2005, and again in 2007, documents were provided by the appellant and also obtained from the Department of Defense concerning the appellant's military service. Most importantly, confirmation was received from the Department of Defense addressing the appellant's purported stressors. A review of those documents suggests that the Department of Defense had the information needed to confirm the purported stressors when the appellant originally filed his claim for service connection for PTSD. In December 2007, after reviewing the newly obtained evidence, including the confirmation by the Department of Defense of the appellant's stressors and medical evidence showing that the appellant was suffering from PTSD, service connection for PTSD was granted by the RO. The RO subsequently awarded a 30 percent disability rating and assigned an effective date of August 21, 2006 - the date that the RO received the appellant's request to reopen his claim for benefits. In light of the above, the Board finds that the appellant is entitled to an effective date of September 19, 2000, for the grant of service connection for PTSD in accordance with 38 C.F.R. § 3.156(c)(1). While initially the RO found that the evidence of record did not confirm the stressors complained about by the appellant, the information and documentation supplied by the Department of Defense in 2005 through 2007, coupled with the other evidence of record, provided a sufficient basis upon which to grant service connection. It follows that the information and documentation from the Department of Defense was relevant to the appellant's claim. This information and documentation existed at the time of the RO's initial decision in 2000 because it was all dated prior to 2000. None of it was misplaced - it was just not obtained from the Department of Defense by the RO. Yet the Court in Vigil held that "the reference to misplaced records in the [pre-amended 38 C.F.R. § 3.156(c)] regulation was intended to be an example of the types of records that might allow a claimant to obtain an effective date prior to the date of reopening under 38 C.F.R. § 3.156(c), and was not limited solely to misplaced records." 22 Vet. App. at 66. In sum, the 38 C.F.R. § 3.156(c)(1) requirements that the service department records be relevant and have existed but not have been associated with the claims file when VA first rendered a final decision on the claim have been satisfied, and the fact that these records were not misplaced is of no consequence. 38 C.F.R. § 3.156(c)(1) accordingly applies. However, 38 C.F.R. § 3.156(c)(2) is not for application. The service department records at issue here existed, and therefore were capable of being obtained, at the time of the RO's December 2001 decision, as noted above. The appellant also provided sufficient information for these records to be identified and obtained as of the time of the RO's decision of December 2001. Indeed, the Department of Defense in 2000 had access to essentially the same information on his inservice stressor involving being attacked as the Department of Defense had in 2005 through 2007. His service personnel information that averred that he was assigned to the 67th Signal Battalion of the 11th Signal Brigade in 1990 and 1991, and that his unit was in Saudi Arabia and Kuwait when stressful incidents occurred were always before the VA. Yet, it was not until late 2004 and 2005 that the RO actually attempted to obtain from the Department of Defense the appellant's actual service records and confirmation from the Department that the appellant may have been exposed to stressful events while stationed in Saudi Arabia and Kuwait. In essence, both the VA and the Department of Defense had had the same ability to identify and obtain records verifying the appellant's inservice stressors but the information was not obtained until after the appellant sought to reopen his claim. The Board finds, in light of the above conclusion, that the VA's failure to obtain confirmation of the stressors through contact with the Department of Defense was administrative error. VA has indicated that "a claimant should not be harmed by an administrative deficiency of the government." 70 Fed. Reg. at 35, 389. Because the information supplied by the appellant prior to the initial final decision in December 2001 ultimately was sufficient to verify his inservice stressors and substantiate his claim, he shall be afforded the benefit of an effective date back to September 19, 2000, when his original claim was received pursuant to 38 C.F.R. § 3.156(c)(3). ORDER An effective date of September 19, 2000, for the awarding of service connection for PTSD is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs