Citation Nr: 1120330	
Decision Date: 05/25/11    Archive Date: 06/06/11

DOCKET NO.  10-00 063A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an effective date prior to October 22, 2007 for the grant of service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to an initial rating in excess of 10 percent for PTSD.


ATTORNEY FOR THE BOARD

D. Johnson, Counsel


INTRODUCTION

The Veteran had honorable military service in the United States Marines from June 5, 1967, to July 6, 1976, including service in the Republic of Vietnam.  The Veteran had additional service from July 7, 1976, to July 25, 1980; however, this period of service was deemed other than honorable.

This appeal comes before the Board of Veterans' Appeals (Board) from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that granted service connection for PTSD and assigned 10 percent rating, effective October 22, 2007.  

The issue of entitlement to an initial rating in excess of 10 percent for PTSD 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.  The Veteran was discharged from active duty on July 25, 1980, under conditions other than dishonorable.

2.  The Veteran's original claim for service connection for a psychiatric disorder was received on July 10, 1981, within one year of separation from service.

3.  Service connection for psychiatric disability was denied in March 1983 and January 1984 rating decisions.  The Veteran was notified of those decisions and of his appellate rights, but did not perfect an appeal.

4.  The Veteran filed an application to reopen his PTSD claim in October 2007.

5.  In a December 2008 rating decision, service connection for PTSD was granted by the RO based upon newly associated service records confirming his reported stressors, which were not previously of record.


CONCLUSION OF LAW

The criteria for an effective date of July 26, 1980, for the grant of service connection for PTSD have been met.  38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.156(c), 3.400 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran seeks an effective date earlier than October 22, 2007, for the grant of service connection for PTSD.  Specifically, he asserts that an effective date of July 10, 1981, is warranted for the grant of service connection for PTSD because that is the date he initially filed his claim of service connection for this condition with VA.  In this decision, the Board finds that an earlier effective date of July 26, 1980, the day following the Veteran separation from service, is warranted for service connection for PTSD.  In light of the Board's determination, no discussion of VA's duty to notify or assist is necessary.

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 on 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 evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if claim is received within one year after separation from service; otherwise, date of receipt of claim or the date entitlement arose, whichever is later.  Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2).

The Veteran filed an original claim for service connection for a psychiatric disorder on July 10, 1981.  The RO denied this claim in a rating decision issued in March 1983, on the basis that there was no current diagnosis of PTSD.  The Veteran submitted additional evidence in December 1983, and in a rating decision issued in January 1984, the RO confirmed the prior denial.  The Veteran was notified of those decisions and informed of his appellate rights, but did not perfect an appeal and the decision became final. 38 U.S.C.A. § 7105(c) (West 2002).

The Veteran submitted an application to reopen the claim of service connection for PTSD on October 22, 2007.  In a rating decision issued in December 2008, the RO awarded service connection for PTSD, effective October 22, 2007.  This award was based, in part, upon newly associated service records that consisted of declassified unit command chronologies and organizational data records that confirmed the Veteran's reported stressors.  Under the provisions of 38 C.F.R. § 3.156(c), when VA receives relevant service department records that existed at the time of a prior final decision, VA will reconsider the prior decision without the need for new and material evidence.  

The service records received in connection with the Veteran's application to reopen his claim were relevant to the previously denied claim because they corroborated his reported stressor, an element of significance in determining entitlement to service connection for PTSD.  Additionally, although these service records were not associated with the claims file at the time of the March 1983 or January 1984 decisions, as service department records they were constructively of record.  See Vigil v. Peake, 22 Vet. App. 63 (2008); see also 38 C.F.R. § 3.156(c).  Thus, the December 2008 rating decision granting service connection for PTSD is deemed to have been based upon the original claim that was filed in July 1981.

As indicated, the effective date for the grant of service connection based upon an original claim, as has been determined to be the case here, is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service.  38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b).  Further, separation from service means "separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated."  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2).  

The Board notes that the Veteran initially joined the Marine Corps on June 5, 1967, for a period of four years with a conditional discharge date of June 6, 1971.  He reenlisted on July 24, 1970, for an additional six years with a conditional discharge date of July 24, 1976.  The Veteran's character of discharge for these two periods of service, from June 5, 1967, to July 6, 1976, was honorable.  The Veteran reenlisted on July 7, 1976, but was discharged under other than honorable conditions on July 25, 1980, as a result of having been absent without leave (AWOL) for a period of in excess of 180 days.  In an administrative decision dated April 1982, VA determined that because the Veteran's discharge from his third and final period of service (July 25, 1976 to July 25, 1980) was under other than honorable conditions, he was precluded from receiving disability benefits arising from this period of service.  See 38 C.F.R. § 3.12(c)(6).

Here, the Board finds that the Veteran separated from service under conditions other than dishonorable and from continuous active service that extended from the date his disability was incurred.  In reaching this determination, the Board notes that the Veteran served in Vietnam from April 1969 to February 1970.  Service connection for PTSD was granted based on events that occurred during service in Vietnam, and thus during a period of service that is considered honorable.  The Board notes further, that the Veteran's discharge from his third and final period of active service was not considered to have been "under dishonorable conditions."  

In this regard, the Board observes that 38 C.F.R. § 3.12(d) sets forth specific offenses for which a Veteran's discharge will be considered to have been issued under dishonorable conditions.  The Veteran's discharge was not as a result of one of the specific offenses listed under 38 C.F.R. § 3.12(d).  Thus, the Board finds that the Veteran separated from service under conditions other than dishonorable (and from continuous active service that extended from the date his PTSD was incurred).  Thus, the effective date of his award of service connection for PTSD, based on his original claim for compensation, is the day following separation from active duty service.  See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2).  

As the Veteran separated from active service on July 25, 1980, and his original claim for service connection was received on July 10, 1981, within one year after his separation from service, the proper effective date for the grant of service connection for PTSD is July 26, 1980.  See Vigil v. Peake, 22 Vet. App. 63 (2008); see also 38 C.F.R. § 3.156(c) (2010).  


ORDER

Subject to the law and regulations governing payment of monetary benefits, an earlier effective date of July 26, 1980, for the grant of service connection for PTSD, is granted.


REMAND

The Veteran seeks a higher for his service-connected PTSD, currently rated as 10 percent disabling; he contends that it warrants a 50 percent evaluation.  

In this decision, the Board grants an earlier effective date for the grant of service connection for PTSD such that the effective date of service connection is now July 26, 1980.  In light of the Board's action, additional development is warranted prior to adjudication of the increased rating claim.  In this regard, the Board notes that the criteria used to evaluate disabilities involving mental disorders were revised twice since July 1980, the effective date of the Veteran's award of PTSD.  The rating criteria were revised effective February 3, 1988.  See 53 Fed. Reg. 21-01 (Jan 4, 1988).  The rating criteria were revised again effective November 7, 1996.  See 61 Fed. Reg. 52695 (Oct 8, 1996).  Where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has been concluded, the version of the law or regulation most favorable to the appellant generally applies.  Accordingly, the Veteran's PTSD disability must be evaluated under the former and the revised criteria, though the revised criteria may not be applied at any point prior to the effective date of the change.  See 38 U.S.C.A. § 5110(g) (West 2002); VAOPGCPREC 3-2000 (Apr. 10, 2000).

In addition, the Board finds that a VA examination that includes a retrospective medical opinion addressing the level(s) of impairment due to PTSD that has been present throughout the applicable appeals period would be most helpful in rating the disability.  See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period).  

Finally, because the claim is being remanded, the RO should obtain and associate with the claims file, all outstanding VA and private medical records pertaining to the Veteran's PTSD disability that are not of record.  

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request that he identify any VA and private medical providers that may have records relevant to his claim that are not already of record.  After securing any necessary authorization, obtain the records.  All efforts to obtain any medical reports made should be documented and incorporated into the claims file.

2.  After associating any pertinent, outstanding records with the claims folder, afford the Veteran a VA psychiatric examination to determine the extent and severity of his PTSD since July 26, 1980.  The claims folder should be made available to and reviewed by the examiner.  All indicated tests should be performed.  The examiner should report all pertinent findings and estimate the Veteran's Global Assessment of Functional (GAF) Scale score currently and since July 26, 1980.  

In addition to offering findings and conclusions regarding the current nature, extent, manifestations and severity of the Veteran's psychiatric disability, the examiner must review the Veteran's history and render a retrospective opinion regarding the severity of the Veteran's psychiatric disability for the entire appeals period under review (i.e. from July 26, 1980, to the present).  In providing a retrospective medical opinion that describes the level of impairment caused by the Veteran's psychiatric disability, for the period of July 26, 1980, to the present, the examiner must indicate the nature and extent of the impact of the Veteran's psychiatric disability on his occupational functioning as well as the nature and extent of his social impairment.

All findings and conclusions, along with a fully articulated rationale, should be set forth in a legible report.  

3.  After effectuating the Board's grant of an earlier effective date, the RO must adjudicate the evaluation of the Veteran's PTSD since July 26, 1980.  In doing so, the RO must consider the noted regulatory changes and also consider whether staged ratings are warranted.  If the benefit sought on appeal is not granted in full, the Veteran should be issued a supplemental statement of the case and provided an opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.

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. 2010).

______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs