Citation Nr: 0811146	
Decision Date: 04/04/08    Archive Date: 04/14/08

DOCKET NO.  04-36 219	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Winston-Salem, North Carolina


THE ISSUE

Entitlement to an effective date prior to October 6, 2003, 
for the grant of service connection for post traumatic stress 
disorder (PTSD).  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

O. Lee, Associate Counsel




INTRODUCTION

The veteran served on active duty from May 1972 to November 
1982. 

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a February 2004 rating decision of the 
RO in Winston-Salem, North Carolina, which granted service 
connection for PTSD, effective October 6, 2003.  


FINDINGS OF FACT

1.	The veteran filed his original claim of service connection 
for PTSD on October 6, 2003.

2.	In a February 2004 rating decision, the RO granted service 
connection for PTSD and assigned an effective date of 
October 6, 2003, the date of receipt of claim.  

3.	The veteran did not meet all eligibility criteria for 
service connection for PTSD as of April 11, 1980, or May 
19, 2003.  


CONCLUSION OF LAW

The criteria for an earlier effective date of October 6, 
2003, for the award of service connection for PTSD have not 
been met.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.114, 3.159, 3.400 
(2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the 
veteran's claims folder, and has an obligation to provide 
reasons and bases supporting the decision.  See Gonzales v. 
West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must 
review the entire record, but does not have to discuss each 
piece of evidence).  The analysis below focuses on the most 
salient and relevant evidence and on what this evidence 
shows, or fails to show, on the claims.  The veteran must not 
assume that the Board has overlooked pieces of evidence that 
are not explicitly discussed herein.  See Timberlake v. 
Gober, 14 Vet. App. 122 (2000) (the law requires only that 
the Board address its reasons for rejecting evidence 
favorable to the veteran).

The Board must assess the credibility and weight of all 
evidence, including the medical evidence, to determine its 
probative value, accounting for evidence which it finds to be 
persuasive or unpersuasive, and providing reasons for 
rejecting any evidence favorable to the veteran.  Equal 
weight is not accorded to each piece of evidence contained in 
the record; every item of evidence does not have the same 
probative value.  When all the evidence is assembled, VA is 
responsible for determining whether the evidence supports the 
claim or is in relative equipoise, with the veteran 
prevailing in either event, or whether a preponderance of the 
evidence is against a claim, in which case, the claim is 
denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I.  The Veterans Claims Assistance Act (VCAA)

With respect to the veteran's claim, VA has met all statutory 
and regulatory notice and duty to assist provisions.  See 38 
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 
2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326 (2007).

Under the VCAA, when VA receives a complete or substantially 
complete application for benefits, it is required to notify 
the claimant and his representative, if any, of any 
information and 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).  
In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) 
(Pelegrini II), the United States Court of Appeals for 
Veterans Claims (Court) held that VA must inform the claimant 
of any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; (3) that the claimant is expected to provide; and 
(4) request that the claimant provide any evidence in his 
possession that pertains to the claim.  

Prior to the initial adjudication of the veteran's claim, a 
letter dated in October 2003 fully satisfied the duty to 
notify provisions.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. 
§ 3.159(b)(1); Quartuccio, 16 Vet. App. at 187.  The veteran 
was aware that it was ultimately his responsibility to give 
VA any evidence pertaining to the claim.  The October 2003 
told him to provide any relevant evidence in his possession. 
See Pelegrini II, 18 Vet. App. at 120-121.

The United States Court of Appeals for Veterans Claims 
(Court) recently held that "the statutory scheme 
contemplates that once a decision awarding service 
connection, a disability rating, and an effective date has 
been made, § 5103(a) notice has served its purpose, and its 
application is no longer required because the claim has 
already been substantiated."  Dingess v. Nicholson, 19 Vet. 
App. 473, 490 (2006).  In this case, the veteran's claim was 
granted, a disability rating and effective date assigned, in 
a February 2004 decision of the RO.  VA's duty to notify 
under 38 U.S.C.A. § 5103(a) is discharged.  See Sutton v. 
Nicholson, 20 Vet. App. 419 (2006).  Accordingly, the Board 
concludes that any error in failing to provide adequate pre-
adjudicative notice under 38 U.S.C.A. § 5103(a) was harmless.  

The Board also concludes VA's duty to assist has been 
satisfied.  The veteran's service medical records and VA 
medical records are in the file.  Private medical records 
identified by the veteran have been obtained, to the extent 
possible.  The veteran has at no time referenced outstanding 
records that he wanted VA to obtain or that he felt were 
relevant to the claim.  In addition, the veteran was afforded 
an appropriate VA examination in January 2004.  

The Board further notes that adjudication of a claim for an 
earlier effective date for the grant of service connection is 
based upon evidence already in the claims folder; the 
resolution of the claim often depends upon when certain 
document(s) were either received by VA and/or when a law was 
promulgated.  See generally 38 C.F.R. §§ 3.151, 3.155, 3.156, 
3.157, 3.160, 3.400 (2007).  The instant case addresses 
whether a liberalizing law can afford the veteran an earlier 
effective date; this issue also pertains to the dates of 
receipt of certain documents by VA and/or the dates of the 
promulgation of law.  Consequently, there is no additional 
development (that has not already been conducted) that would 
substantiate the veteran's claim.

As there is no indication that any failure on the part of VA 
to provide additional notice or assistance reasonably affects 
the outcome of this case, the Board finds that any such 
failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 
103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 
444 F.3d 1328 (Fed. Cir. 2006).

II.  Earlier Effective Date

The veteran contends that he is entitled to an effective date 
earlier than October 6, 2003, for the grant of his service 
connection claim for PTSD.  For the reasons that follow, the 
Board concludes that an earlier effective date is not 
warranted.

The assignment of effective dates of awards is generally 
governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 
3.400 (2007).  Unless specifically provided otherwise in the 
statute, the effective date of an evaluation and award based 
on an original claim for compensation benefits shall be the 
date of receipt of the claim or the date entitlement arose, 
whichever is later.  38 U.S.C.A. § 5110(a) (West 2002); 38 
C.F.R. § 3.400 (2007).

The record reveals that the veteran filed his original claim 
for service connection for PTSD on October 6, 2003.  The RO 
subsequently granted service connection for PTSD and assigned 
an effective date of October 6, 2003.  The Board concludes 
that this is the correct effective date.  See 38 U.S.C.A. § 
5110; 38 C.F.R. § 3.400(b)(2)(i) (effective date of an award 
of disability compensation based on an original claim for 
direct service connection will be, "date of receipt of claim, 
or date entitlement arose, whichever is later" (emphasis 
added)).  Here, the veteran's claim for service connection 
for PTSD was granted based upon his October 6, 2003, 
submission.  The veteran did not file a claim for service 
connection for PTSD prior to October 6, 2003.  Thus, based on 
the general rules governing effective dates, an effective 
date prior to October 6, 2003, the date of claim, is legally 
precluded.  See id.  

There is, however, an exception to this general rule.  38 
C.F.R. § 3.114, derived from 38 U.S.C.A. § 5110(g), governs 
the effective dates of compensation awarded pursuant to 
liberalizing changes in the law.  Where compensation is 
awarded or increased pursuant to a liberalizing law, 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.  
38 C.F.R. § 3.114(a).  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.  38 C.F.R. § 
3.114(a)(1).  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.  38 C.F.R. § 3.114(a)(2).  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.  38 C.F.R. § 3.114(a)(3).  In order 
for a claimant to be eligible for a retroactive payment, 
however, 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.  
See 38 C.F.R. § 3.114(a); see also McCay v. Brown, 9 Vet. 
App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 
1997).

The case of Brown v. Nicholson, 21 Vet. App. 290 (2007) 
indicates that a two part test must be met in order for a 
claim to warrant an earlier effective date under 38 C.F.R. § 
3.114.  In Brown, the Court stated that "[t]he plain language 
of the statute and its implementing regulation require two 
specific findings: A finding that a liberalizing law or 
administrative issue was implemented, as well as a 
determination that the ultimate grant of benefits was 
'pursuant to' such a favorable change in the law."  Id., at 
295.

In a precedential opinion, VA's General Counsel concluded 
that the addition of PTSD to the list of mental disorders 
under 38 C.F.R. § 4.132 in the Rating Schedule, effective 
April 11, 1980, was a liberalizing VA issuance for purposes 
of 38 C.F.R. 3.114(a).  VAOPGCPREC 26-97 (July 16, 1997); see 
also 45 FR 26326-02 (April 18, 1980).  

The Board notes that another pertinent legal change is that 
of the revision of 38 C.F.R. § 3.304, effective May 19, 1993.  
See 58 FR 29109-01 (May 19, 1993).  As a result of Wood v. 
Derwinski, 1 Vet. App. 190 (1991), VA revised 38 C.F.R. § 
3.304 to include paragraph (f), describing the evidentiary 
burden of verifying stressors occurring in the context of 
combat.  Id.  The Federal Register notice indicated that the 
revisions contained in paragraph (f) were taken from the VA 
Adjudication Procedure Manual and were substantive in nature.  
Id.  The VA General Counsel has held these provisions to be 
"liberalizing" in nature as well.  See VAOPGCPREC 7-92 (March 
17, 1992).

The issue in the present case, therefore, is whether the 
grant of service connection was made "pursuant to" the 
liberalizing changes in law in either April 1980 or May 1993.  
See Brown, supra.  The veteran argues that an effective date 
earlier than the date of claim is warranted pursuant to 38 
U.S.C.A. § 5110(g).  He relies on the liberalizing law under 
which PTSD was added to the Rating Schedule.  The veteran 
asserts that he met the eligibility requirements of PTSD on 
the effective date of the liberalizing law, April 11, 1980, 
because his symptoms started in Vietnam and because he had 
returned home "shell-shocked."  

Applying the criteria above to the facts of this case, a 
careful review of the claims reveals that the earliest record 
of a confirmed diagnosis of PTSD is dated in September 2003.  
Specifically, a September 9, 2003, report from Goldsboro 
Psychiatric Clinic shows that the veteran reported a history 
of stressful experiences in service to include witnessing 
death and injury among his fellow soldiers and others.  
Following an examination, the diagnosis was PTSD.  There is 
no medical evidence of findings, treatment or diagnosis of 
any psychiatric condition prior to this point in time.  Thus, 
the eligibility criteria for a grant of service connection 
for PTSD (to include a diagnosis of PTSD) were not met as of 
April 11, 1980, the effective date of the addition of PTSD to 
the Rating Schedule, nor as of May 19, 1993, the effective 
date of 38 C.F.R. § 3.304(f).  The veteran is not entitled to 
retroactive payment as he did not meet all eligibility 
criteria for the liberalized benefit on the effective date of 
the liberalizing laws and such eligibility did not exist 
continuously from that date to the date of claim in October 
2003.  See 38 C.F.R. § 3.114(a); see also McCay, 9 Vet. App. 
at 188.  The Courts have long upheld VA's position that proof 
of a present disability is required for there to be a valid 
service connection claim.  See Rabideau v. Derwinski, 2 Vet. 
App. 141 (1992); Brammer v. Derwinski, 3 Vet. App. 223 
(1992).  

The veteran is competent to give evidence about what he 
experienced; for example, he is competent to report that he 
experiences certain symptoms.  See, e.g., Layno v. Brown, 6 
Vet. App. 465 (1994).  He is not, however, competent to 
diagnose any medical disorder or render an opinion as to the 
cause or etiology of any current disorder because he does not 
have the requisite medical knowledge or training.  See 
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  Therefore, he 
cannot provide a competent opinion that he has had PTSD 
since, or prior to, 1980.  

The Board notes that there is no evidence of record to show 
that the veteran had any complaints, diagnosis or treatment 
of PTSD prior to the filing of the present service connection 
claim in 2003.  In fact, the veteran filed earlier claims for 
service connection for a chronic back disability and 
residuals of a gun shot wound, lower left leg, in 1982, and 
mentioned nothing at the time about a psychiatric disorder.  
The Board finds this to weigh heavily against the veteran's 
assertion that he has suffered from PTSD since returning from 
Vietnam.

The Board further notes that the veteran has cited Thomas v. 
Principi to support the proposition that a diagnosis of PTSD 
is not a requirement under 38 C.F.R. § 3.114.  However, 
although the Thomas case addresses an earlier effective date 
for service connection for PTSD and the application of 38 
U.S.C.A. § 5110(g), 38 C.F.R. § 3.114(a), and VAOPGCPREC 26-
97, it is a memorandum decision from the Court and has no 
precedential or binding authority.  

Based upon the aforementioned reasons, an effective date 
earlier than October 6, 2003 for the grant of service 
connection for PTSD cannot be awarded.  As such, the Board 
finds that the preponderance of the evidence is against the 
veteran's claim.  Consequently, the benefit-of-the-doubt rule 
does not apply, and the claim must be denied.  38 U.S.C.A. § 
5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 
(1990).


ORDER

Entitlement to an effective date earlier than October 6, 2003 
for the grant of service connection for PTSD is denied.



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs