Citation Nr: 0811640 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-11 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a chronic acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), depressive disorder, generalized anxiety disorder with depression, and panic attacks. 2. Entitlement to an effective date prior to July 30, 2002, for the award of nonservice-connected pension benefits. REPRESENTATION Appellant represented by: John F. Cameron, Attorney at Law ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The veteran served on active duty from September 1992 to February 1998. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2003 and July 2003 decisions of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO). In the April 2003 decision, the RO granted nonservice-connected disability pension benefits, effective July 30, 2002, and the veteran contends that an earlier effective date should be assigned for the grant of his nonservice-connected pension benefits. In the July 2003 rating decision, the RO denied service connection for post- traumatic stress disorder (PTSD), severe depression, panic attacks, and anxiety. The veteran expresses disagreement with the denial of service connection benefits for the claimed disabilities. During the course of the appeal, the veteran's claims file was permanently transferred to the RO in Waco, Texas; hence, that RO now has jurisdiction over the claim on appeal. The issue of service connection for a chronic acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), depressive disorder, generalized anxiety disorder with depression, and panic attacks 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. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. On July 30, 2002, the RO received a claim for entitlement to nonservice-connected pension benefits. CONCLUSION OF LAW The criteria for an effective date prior to July 30, 2002, for the award of nonservice-connected pension have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.159, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Decision The veteran was awarded nonservice-connected pension benefits, effective July 30, 2002, pursuant to the April 2003 decision. In a March 2005 statement, the veteran's attorney asserts that the effective date for his nonservice-connected pension benefits should be December 8, 1998, the date of the veteran's VA Form 21-526, Veteran's Application for Compensation or Pension. In general, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase 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. The effective date of an award of VA nonservice-connected disability pension shall be fixed in accordance with the facts found, but shall not be earlier than the date entitlement arose. 38 C.F.R. § 3.400(b). For a pension claim received on or after October 1, 1984, except as provided by (b)(1)(ii)(B) of this section, the effective date will be the date of receipt of the claim. 38 C.F.R. § 3.400(b)(1)(ii). The exception under (b)(1)(ii)(B) of 38 C.F.R. § 3.400 provides that if, within one year from the date on which the veteran first became permanently and totally disabled, the veteran files a claim for a retroactive award and establishes that a physical or mental disability, which was not the result of the veteran's own willful misconduct, was so incapacitating that it prevented him or her from filing a disability pension claim for at least the first 30 days immediately following the date on which the veteran became permanently and totally disabled, the disability pension may be effective from the date of receipt of claim or the date on which the veteran became permanently and totally disabled, whichever is to the advantage of the veteran. While rating board judgment must be applied to the facts and circumstances of each case, extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented the filing of a claim. For the purposes of this subparagraph, the presumptive provisions of 38 C.F.R. § 3.342(a) do not apply. 38 C.F.R. § 3.400(b)(1)(ii)(B). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C.A. § 101(30) (West 2002); 38 C.F.R. § 3.1(p) (2007). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2007). Under 38 C.F.R. § 3.157 (2007), a report of examination or hospitalization will be accepted as an informal claim for benefits. However the provisions of 38 C.F.R. § 3.157(b)(1) state that such reports must relate to examination or treatment of a disability for which service- connection has previously been established or that the claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b)(1). In the present case, the record reflects that the veteran filed an informal claim for entitlement to nonservice- connected benefits, which was received on July 30, 2002. Although the evidence of record does not reveal an exact date upon which the entitlement arose, the Board notes that such information is not required in order to conclude that the July 30, 2002, effective date of the award, selected by the RO, was appropriate. Here, the law and regulation state that the effective date for a claim for pension will be the date of claim or date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Thus, even if entitlement arose prior to July 30, 2002, the date of claim, the later date is the controlling date that would be the governing consideration in assessing the effective date appropriately to be assigned in this case. Any evidence showing that the entitlement occurred after July 30, 2002, would not entitle the veteran to an earlier effective date, since the later of the two dates is controlling. The Board has also considered whether any evidence of record could serve as an informal claim in order to entitle the veteran to an earlier effective date. However, the claims file contains no earlier communications expressing an intent to apply for nonservice-connected pension benefits. In particular, the veteran's attorney contends that when the veteran first applied for VA benefits via VA Form 21-526, Veteran's Application for Compensation or Pension in December 1998, he was applying for service connection benefits as well as nonservice-connected pension benefits. The representative explained in a March 2005 personal statement that the RO did not adjudicate his claim for pension benefits until the April 2003 decision, which assigned an "incorrect effective date." However, upon review of the record, the veteran did submit a VA Form 21-526, Veteran's Application for Compensation or Pension, but did not complete "[i]tems 33A through 33D," which must be completed if applying for nonservice-connected pension benefits. In fact, the veteran marked "NA" on those sections, which imply that he had no intentions of applying for those benefits. Therefore, the Board concludes that the record does not contain any previously unadjudicated claim for pension or compensation that could entitle the veteran to an earlier effective date for his nonservice-connected pension benefits. For the reasons stated above, an effective date prior to July 30, 2002, for the award of nonservice-connected pension benefits cannot be granted, as there is nothing in the record to provide a basis to award an earlier effective date. The preponderance of the evidence is against an effective date prior to July 30, 2002, for the award of nonservice-connected disability pension benefits. The benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 51. II. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the 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) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), 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; and (3) that the claimant is expected to provide; and that (4) VA will request that the claimant provide any evidence in his possession that pertains to the claim. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the agency of original jurisdiction (AOJ). Under such circumstances, VA's duty to notify may not be "satisfied by various post- decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the veteran on June 2007 that fully addressed all four notice elements. The letter informed the veteran of what evidence was required to substantiate the claim for an earlier effective date and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the AOJ. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a November 2007 supplemental statement of the case (SSOC) after the notice was provided. For these reasons, it is not prejudicial to the veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA obtained the veteran's service medical records, VA outpatient treatment records from July 1998 to July 2006, private treatment records dated March 1999 to September 2002, and Social Security Administration (SSA) medical records. VA did not provide the veteran with an examination in connection with his claim for an earlier effective date because the issue does not meet the statutory or regulatory requirements for entitlement to an examination. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); see also 38 C.F.R. § 3.159(c)(4) (2007). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim. Therefore, no further assistance to the veteran with the development of evidence is required, nor is there notice delay or deficiency resulting in any prejudice to the veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to an effective date prior to July 30, 2002, for the award of nonservice-connected pension benefits is denied. REMAND The record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the claim of entitlement to service connection for a chronic acquired psychiatric disorder to include post-traumatic stress disorder, depressive disorder, generalized anxiety disorder with depression, and panic attacks. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). The veteran seeks service connection for PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2007). See Cohen v. Brown, 10 Vet. App. 128 (1997). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain corroborative evidence that substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The evidence on file indicates that the veteran was clinically diagnosed with PTSD in May 2005. While the veteran has provided information regarding his claimed stressors, the RO has not attempted to verify them because it was determined that the information provided by the veteran was too general to submit to the U. S. Army and Joint Services Record Research Center (JSRRC), formerly the U. S. Armed Services Center for Unit Records Research (CURR) for verification. However, the Board finds that the claimed stressors are specific enough that they may be submitted to JSRRC for verification. In August 2002, the veteran submitted a PTSD questionnaire, recounting several events during his active military service which caused his current PTSD. From December 1995 to June 1996, the veteran stated that he was exposed to sniper fire while transporting medical supplies and food to refugees. On several occasions, he drove through "mined areas" and "mined roadways," and was in constant exposure to snipers. He explained that these events took place in Sarajevo, Croatia, and Bosnia, while he was a member of the 94th Regiment, 535th Engineer Division. The veteran contends that his PTSD is attributable to his exposure to the stressful events previously stated. Based on the record, it does not appear that the RO requested the assistance of JSRRC in attempting to locate corroborative evidence of the veteran's claim that he experienced traumatic events from December 1995 to June 1996, as a member of the 94th Regiment, 535th Engineer Division. The Board believes this should be done. If the JSRRC is able to corroborate the veteran's claimed in- service stressors, the question next presented is whether such stressors are clinically considered to be of sufficient severity to warrant a valid diagnosis of PTSD. The descriptive definition of a stressor in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994) (DSM-IV) provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror. If the veteran's claimed in-service stressor can be independently corroborated, it must be clinically evaluated in accordance with the provisions of DSM-IV. The record does not indicate that the PTSD diagnosis was made on the basis of a verified history of the veteran's service stressors and, therefore, it was inadequate for rating purposes. See West v. Brown, 7 Vet. App. 70, 77-78 (1994). Further psychiatric evaluation is necessary. The Board notes that the evidence of record also establishes that in addition to the veteran being diagnosed with PTSD, he has also been diagnosed as having multiple psychiatric problems, including, but not limited to, depressive disorder, generalized anxiety disorder, depression, and panic attacks. However, the etiology of the diagnoses has never been definitely expressed. At this time, it is unclear as to whether the diagnosed disorders are possibly related to the veteran's alleged in-service traumatic experiences or other medical conditions discussed in the record. Based upon the foregoing, the Board concludes that a medical examination is needed in order to clarify the veteran's diagnosis as to any psychiatric disorder and obtain a nexus opinion which specifically addresses the veteran's in-service stressors. See 38 C.F.R. § 3.326 (2007). Finally, a review of the claims file reveals that it does not appear that the veteran has been sent the necessary VCAA notice that relates directly to his claim for service connection for PTSD. The Board notes that the RO sent the veteran letters in August 2002 and June 2007, advising him of the evidence and information required to substantiate his claim for entitlement to service connection; however, the veteran has not been specifically informed of the type of information or evidence necessary to substantiate a claim for PTSD, which differs from the general service connection claim. The Board concludes that a remand is necessary to ensure compliance with the enhanced provisions of the VCAA for entitlement to service connection for PTSD. Therefore, in order to give the veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a development letter asking him to give a comprehensive statement regarding his claimed in- service stressor(s) and to provide buddy statements from individuals who may have witnessed the stressors. The veteran should be requested to provide any additional information he may recall concerning his claimed in-service stressor incidents, to include approximate dates, times, locations and identities of any individuals involved, including their names, ranks and units. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the stressful events and that he must be as specific as possible because without such details an adequate search for verifying information cannot be conducted. 2. Review the veteran's claims file and prepare a summary of all his claimed stressors. The summary and all associated documents, to include the veteran's service personnel records and stressor statements, should be sent to the U. S. Army and Joint Services Record Research Center (JSRRC) 7798 Cissna Road, Suite 101, Springfield, Virginia 22150- 3197. JSRRC should be requested to provide any information that might corroborate the veteran's alleged in- service stressor(s) including, but not limited to, providing a copy of unit histories for the veteran's unit in Sarajevo, Croatia, and Bosnia. 3. Schedule the veteran for an examination to determine the diagnoses of all psychiatric disorders that are present. Furnish the examiner with a complete and accurate account of the stressor or stressors that it has determined are established by the record, and the examiner must be instructed that only those events may be considered for the purpose of determining whether in- service stressors caused the current psychiatric symptoms and whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. The diagnosis should conform to the psychiatric nomenclature and diagnostic criteria contained in DSM- IV. If the veteran is found to have PTSD, the examiner is requested to identify the diagnostic criteria, including the specific stressor or stressors supporting the diagnosis. If the veteran is found to have a psychiatric diagnosis other than PTSD, the examiner is requested to render an opinion as to whether it is at least as likely as not that the veteran's diagnosed psychiatric illness is related to service. A complete rationale should be given for all opinions and conclusions expressed. The claims file, including a copy of this REMAND, should be made available to the examiner before the examination, for proper review of the medical history. The examination report is to reflect whether such a review of the claims file was made. 4. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted, the veteran and her representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. 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. 2007). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs