Citation Nr: 0814667 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 07-20 732A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for diabetes mellitus, Type II, claimed as due to herbicide (Agent Orange) exposure. 2. Entitlement to an effective date earlier than June 10, 2006, for the grant of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. J. O'Mara, Associate Counsel INTRODUCTION The veteran had active service from March 1967 to March 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from July 2005 and January 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied service connection for diabetes mellitus, Type II, and granted service connection for PTSD, and assigned a 70 percent rating, effective June 10, 2006. In December 2007, the veteran testified during a hearing at the RO before the undersigned Veterans Law Judge; a transcript of the hearing is of record. The United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), that reversed a decision of the Board that had denied service connection for disabilities claimed as a result of exposure to herbicides. VA disagrees with the Court's decision in Haas and appealed that decision to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on a court holding that may ultimately be overturned on appeal, on September 21, 2006, the Secretary of Veterans Affairs imposed a stay at the Board on the adjudication of claims affected by Haas. The specific claims affected by the stay include those based on herbicide exposure in which the only evidence of exposure is receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. In this case, the veteran has claimed that his diabetes mellitus is the result of herbicide exposure. Since one of the veteran's theories involves the issue affected by Haas, his claim for entitlement to service connection for diabetes mellitus is stayed until a final resolution of the Haas appeal. Once a final decision is reached on appeal in the Haas case, the adjudication of any cases that have been stayed, including this one, will be resumed. There has since been an appeal contesting whether VA, and the Board in particular, has the authority to temporarily suspend paying out benefits to those veterans who would benefit from the holding in Haas on the premise that decision eventually may be overturned on appeal. See Ribaudo v. Nicholson, 21 Vet. App. 137 (2007) (en banc). The Court's Ribaudo order stays the adjudication of cases before VA affected by Haas, but provides a case-by-case exception to prospectively continue advancing cases on the docket - and deciding them under the Haas standards, if there are compelling reasons to do so. FINDINGS OF FACT 1. On July 1, 2004, the RO received the veteran's initial claim for service connection for PTSD. 2. In a July 2005 rating decision, the RO denied the veteran's claim for service connection for PTSD. 3. In August 2005, the veteran timely filed a notice of disagreement (NOD) with the July 2005 rating decision and in May 2006, the veteran perfected an appeal to the Board. 4. In a January 2007 rating decision, the RO granted service connection for PTSD, effective June 10, 2006. CONCLUSION OF LAW The criteria for an effective date of July 1, 2004, for the grant of service connection for PTSD have been met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. §3.159(c). Considering the claim for an earlier effective date for the grant of service connection for PTSD in light of the above, and in view of the Board's favorable disposition of the claim, the Board finds that all notification and development action needed to render a fair decision on the claim for an earlier effective date for the grant of service connection for PTSD has been accomplished. Merits of the Claim The veteran seeks an effective date earlier than June 10, 2006, for the grant of service connection for PTSD. Specifically, the veteran asserted in his January 2007 NOD that the effective date of the grant of service connection should be the date of his claim in July 2004. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the evidence supports a finding of an effective date for the grant of service connection prior to June 10, 2006. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for service connection 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 claims file reveals that on July 1, 2004, the veteran filed a claim for service connection for PTSD. In support of his claim for service connection, the veteran submitted a non-VA medical record from the Vet Center, dated on June 29, 2004, that shows an Axis I diagnosis of PTSD, which was diagnosed by a licensed social worker. In February 2006, the veteran underwent a VA examination, after which the examiner found that the veteran did not have a diagnosis of PTSD, rather a diagnosis of depression. The examiner found that it was questionable whether the veteran re-experienced the traumatic events according to DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition, of the American Psychiatric Association (DSM-IV) criteria. A subsequent June 2006 letter from a non-VA physician, R.H., M.D., shows an Axis I diagnosis of PTSD, severe and chronic. Dr. R.H. opined that the veteran had severe symptoms of PTSD since his return from service. To reconcile the various psychiatric diagnoses, the RO afforded the veteran a VA examination in November 2006. The VA examiner diagnosed the veteran with PTSD, chronic from exposure to war zone. She also stated that the difference in her interview from the February 2006 VA examiner's interview was that the veteran revealed to the November 2006 VA examiner the most upsetting incident in his service, which he had not revealed to the February 2006 VA examiner. She felt that the veteran might have received counseling between the February 2006 VA examination and the November 2006 VA examination where he was able to discuss these events. Therefore, it was her opinion that the veteran's PTSD was a result of his military service. In January 2007, the RO granted service connection for the veteran's PTSD, effective June 10, 2006. The RO reasoned that this was the date that the veteran was first diagnosed with PTSD that met the DSM-IV criteria. Based on the evidence of record, however, an effective date of July 1, 2004, the date of the veteran's claim for service connection for PTSD, is warranted. The June 2004 non-VA medical record from the Vet Center shows a diagnosis of PTSD that was rendered by a licensed social worker. No judicial precedent has required that medical examinations in performance of VA's duty to assist be conducted only by physicians. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). "Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." 38 C.F.R. § 3.159(a)(1) (2007). Therefore, the June 2004 diagnosis of PTSD rendered by the licensed social worker who examined the veteran meets the regulatory definition of competent medical evidence. In addition, in June 2006, Dr. R.H., a physician, opined that the veteran's PTSD existed since his discharge from service. Therefore, the physician has stated that the veteran's PTSD had existed prior to the June 2006 medical record (which the RO used to determine the effective date for the grant of service connection) and prior to the veteran's claim for service connection for PTSD in July 2004. Although the record indicates that the veteran's PTSD existed since his discharge from service, an effective date of July 1, 2004, and no earlier, is warranted for the grant of service connection for PTSD, as that is the date of his claim. 38 C.F.R. § 3.400. There is no evidence that the veteran submitted a claim prior to July 1, 2004, neither has the veteran asserted that he submitted such a claim. Therefore, the Board finds that an effective date of July 1, 2004, the date of the veteran's claim, for the grant of service connection for PTSD, is warranted. ORDER An effective date earlier of July 1, 2004, for the grant of service connection for PTSD, is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs