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