Citation Nr: 1123341 Decision Date: 06/20/11 Archive Date: 06/28/11 DOCKET NO. 09-32 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date earlier than August 31, 1994, for the award of service connection for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office & Insurance Center (RO), which awarded entitlement to service connection for posttraumatic stress disorder and assigned an effective date of August 31, 1994. The Veteran appealed the effective date assigned. The Board notes that the Veteran also appealed the evaluation assigned, arguing the Veteran was entitled to a higher evaluation. In a May 2009 rating decision, the RO awarded a 100 percent schedular evaluation for posttraumatic stress disorder. Thus, that claim has been granted in full and is no longer part of the appeal. FINDINGS OF FACT 1. In August 1969, the Veteran submitted a VA Form 21-526, Veteran's Application for Compensation or Pension at Separation from Service, seeking entitlement to compensation benefits for, "Nerves and battle fatigue." 2. In a January 1970 rating decision, the RO denied entitlement to service connection for a psychiatric disorder, determining that the Veteran had a constitutional or developmental abnormality, i.e., a passive aggressive personality disorder, that was not a disability under the law. The Veteran was notified of the decision in a February 9, 1970, letter, which included his appellate rights. He did not appeal, and the rating decision became final. 3. In June 1988, the Veteran filed a claim of entitlement to service connection for posttraumatic stress disorder. In a January 1989 rating decision, the RO denied the claim noting that an examiner had found his symptoms not to support a diagnosis of posttraumatic stress disorder. The Veteran was notified of the decision in a January 31, 1989, letter, which included his appellate rights. He did not appeal the decision, and the rating decision became final. 4. On August 31, 1994, the Veteran submitted a new claim of entitlement to service connection for posttraumatic stress disorder. 5. During the appeal, service records were received, which were part of the basis for the award of service connection for posttraumatic stress disorder. Thus, under 38 C.F.R. § 3.156(c) (2010) the claim is considered to have been pending since August 20, 1969. 6. Prior to August 31, 1994, the preponderance of the evidence is against a finding that the Veteran had posttraumatic stress disorder due to service. CONCLUSION OF LAW The criteria for an effective date prior to August 31, 1994, for the award of service connection for posttraumatic stress disorder have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.156(c), 3.304(f), 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act As service connection, an initial rating, and an effective date have been assigned during the appeal, the notice requirements of 38 U.S.C.A. § 5103(a), have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has fulfilled its duty to assist the claimant. VA obtained records from the Marine Corps, Social Security Administration records, and VA treatment records and provided the Veteran with an examination in connection with the claim of entitlement to service connection for posttraumatic stress disorder. VA did not obtain any additional evidence in connection with the claim for an earlier effective date; however, such was not necessary. Specifically, 38 U.S.C.A. § 5103A(a)(2) states that the Secretary of VA is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim. As will be explained in detail below, the Board finds that the preponderance of the most probative evidence is against finding that the Veteran had posttraumatic stress disorder prior to August 31, 1994. For example, the service treatment records show the Veteran had a personality disorder. When examined in June 1988 for the purpose of determining whether the Veteran had posttraumatic stress disorder, the examiner made a specific finding that a diagnosis of posttraumatic stress disorder could not be supported. A July 1988 VA hospital report noted that the appellant suffered from cocaine and alcohol dependence. Posttraumatic stress disorder was not diagnosed. The Veteran was hospitalized at VA from June to October 1993 (almost five months), and he was diagnosed with alcohol/drug dependence, in remission. Posttraumatic stress disorder was not diagnosed. See VA hospitalization summary report. Finally, the Veteran was hospitalized again in August 1994 for almost two weeks and diagnosed with cocaine dependence, alcohol dependence, and cannabis abuse. Again, posttraumatic stress disorder was not diagnosed. Thus, any medical opinion obtained now regarding when posttraumatic stress disorder had its onset, assuming the examiner would state it had its onset prior to August 31, 1994, would be rejected, as the Board accords more probative value to opinions made by medical professionals who examined the Veteran contemporaneously during the time period in question. Additionally, oftentimes with earlier-effective-date claims, the evidence necessary to determine whether an earlier effective date is warranted is already in the claims file. That is the situation with this case. For these reasons, the Board has determined that a remand to determine when the Veteran first developed posttraumatic stress disorder is not warranted, as such development would not assist in substantiating the Veteran's claim for entitlement to an earlier effective date. See Vigil v. Peake, 22 Vet. App. 63, 67 (2008). In sum, there is no evidence of any VA error in assisting the appellant that reasonably affects the fairness of this adjudication. The claimant was been afforded a meaningful opportunity to participate in the adjudication of the claim. Hence, the case is ready for adjudication. II. Analysis The Veteran has provided two, different dates for when the award of service connection should be granted. Initially, he had claimed that it should be awarded as of the day following service discharge, which would be in August 1969. See October 2008 submission. He subsequently changed his argument that entitlement to service connection for posttraumatic stress disorder should be awarded as of June 1988, the date of an informal claim for entitlement to service connection for posttraumatic stress disorder. See November 2009 submission. The service treatment records show that the Veteran was diagnosed by a board of psychiatrists with a passive aggressive personality disorder following a period of hospitalization in July 1969. He filed a claim for service connection in August 1969 for nerves and battle fatigue. In a January 1970 rating decision entitlement to service connection for a psychiatric disorder was denied finding that the Veteran had a personality disorder, i.e., a disability for which service connection could not be granted. The Veteran was notified of the denial that same month, along with his appeal rights, and did not appeal the decision. In June 1988, the Veteran filed a claim of entitlement to service connection for posttraumatic stress disorder. Four days earlier, the Veteran had been admitted to a VA hospital for treatment. He was referred for an evaluation to determine if he had posttraumatic stress disorder. A VA examiner determined that a diagnoses of posttraumatic stress disorder could not be supported. In a January 1989 rating decision, the RO denied entitlement to service connection for posttraumatic stress disorder. The Veteran was notified of the denial that same month, along with his appellate rights, but he did not appeal. In August 1994, the Veteran filed an application to reopen the claim for service connection for posttraumatic stress disorder. During the appeal, service records were received from both the National Personnel Records Center and the Commandant of the Marine Corps. In determining that the Veteran had posttraumatic stress disorder from service, it can be inferred that the examiner relied, in part, on a service record. Under the provisions of 38 C.F.R. § 3.156(c)(1), if at any time after VA issues a decision on a claim, it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. An award made based all or in part on the records identified by 38 C.F.R. § 3.156(c)(1) is effective on the date entitlement arose or the date VA received the previously-denied claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously-denied claim. 38 C.F.R. § 3.156(c)(3). As argued by the Veteran, the Board finds that the provisions of 38 C.F.R. § 3.156(c) apply, and VA must now reconsider the claim as of the August 1969 application for compensation benefits. For background purposes, the Veteran entered service in May 1968. He arrived in Vietnam on May 22, 1969. On that very date he received care for complaints of hay fever and a finger injury. He was later treated that month in sick bay for four days for complaints of low back pain. Spinal X-ray studies revealed normal findings. On June 7, 1969, 19 days after arriving in Vietnam, the appellant was transferred to Camp Butler, Okinawa, Japan for further treatment. He was ultimately transferred to a neuropsychiatric service in July 1969. After a period of evaluation and treatment, a conference of staff psychiatrists determined the Veteran had a passive-aggressive personality disorder. It was recommended that the Veteran be discharged from service due to unsuitability. In August 1969, the Veteran submitted a VA Form 21-526, Veteran's Application for Compensation or Pension, wherein he sought service connection for, "Nerves and battle fatigue." In September 1969, the RO informed the Veteran that arrangements were being made for a physical examination, and that he would be informed of the examination at a separate time. In November 1969, the RO denied the claim due to the Veteran's failure to report for the VA examination. The Veteran's service treatment records were subsequently received, and the RO considered the claim in a January 1970 rating decision. The RO denied entitlement to service connection for a psychiatric disorder, determining that the Veteran had a constitutional or developmental abnormality that was not a disability under the law, i.e., a personality disorder. The Veteran was hospitalized at a VA medical facility from June 3 to July 5, 1988, i.e., for approximately one month. The hospitalization summary report shows the Veteran presented himself for admission and stated he had symptoms of posttraumatic stress disorder. While the Veteran was hospitalized, a psychologist evaluated him and determined that a diagnosis of posttraumatic stress disorder could not be supported. He was discharged with diagnoses of drug dependence, cocaine, and alcohol dependence. The Veteran was hospitalized at a VA medical facility from June 8 to October 29, 1993, i.e., for almost five months. The hospitalization summary report shows that the Veteran was admitted with a diagnosis of drug dependence, cocaine/alcohol. He was treated for substance abuse. The examiner noted the Veteran was a Vietnam "combat era" veteran. During the hospitalization, the Veteran accomplished maintenance of his sobriety, full-time employment, and obtained his own apartment. The discharge diagnosis was alcohol/drug dependence, in remission. The Veteran was found to be competent and employable. The Veteran was hospitalized at a VA medical facility from August 25 to September 7, 1994, i.e., for approximately two weeks. It was noted the Veteran walked into admissions because he was depressed and had suicidal thoughts. He admitted to using cocaine on the day of admission. He was transferred to the psychiatric evaluation unit. They stated the Veteran's main problem was his joblessness and that he felt guilty using drugs. He was referred to the Alcohol and Substance Abuse treatment. The Veteran stated he was not interested in substance abuse treatment but was more interested in psychiatric treatment. The examiner noted the Veteran "came to the hospital primarily to obtain Service Connection Disability and wanted to be diagnosed as either schizophrenic or depressed." The discharge diagnoses were cocaine dependence, alcohol dependence, and cannabis abuse. The examiner noted the Veteran was employable at discharge and that no medication was prescribed. The Veteran was hospitalized from May 1995 to July 1995, a period of approximately two months. There, the Veteran reported stressors, such as incoming fire, seeing a Vietnamese person when he was being medivaced, and killing women and children in villages. He was diagnosed with posttraumatic stress disorder. A September 1995 VA examination shows that there Veteran was examined for the purposes of determining if he had posttraumatic stress disorder. The claims file was not available to the examiner. The examiner diagnosed anxiety disorder, not otherwise specified, and concluded that posttraumatic stress disorder was not demonstrated. In a January 2006 VA examination report, the examiner determined that the Veteran had posttraumatic stress disorder due to incoming fire during Vietnam. As stated above, an award made based all or in part on the records identified by paragraph (c)(1) is effective on the date entitlement arose or the date VA received the previously-denied claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously-denied claim. 38 C.F.R. § 3.156(c)(3). The assignment of effective dates of VA awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for compensation (i.e., service connection) "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (emphasis added). The implementing regulation clarifies this to mean that the effective date of service connection/compensation will be, "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (emphasis added). Thus, the provisions of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 are essentially the same as those described in 38 C.F.R. § 3.156(c)(3). Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the 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). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against entitlement to an effective date earlier than August 31, 1994, for the award of service connection for posttraumatic stress disorder. The reasons follow. Initially, the Board notes that the Veteran's credibility has been called into question. For example, at the January 2006 examination, the Veteran reported, "After his combat experience, he assaulted an enlisted man in Okinawa and was disciplined." However, the service records show that such incident occurred on May 15, 1969, which was prior to the Veteran landing in Vietnam. Thus, the assault on the enlisted man occurred prior to being exposed to any combat. Moreover, in a statement received from the Veteran in April 1998, he admitted that the incident occurred prior to his going to Vietnam. See page 7. In the January 2006 examination report, the examiner stated the Veteran had been treated for alcohol and substance (cannabis) abuse. She added, "He has in more recent years also used cocaine." VA treatment records, however, show the Veteran was using cocaine as early as 1988. Such evidence is not indicative of the Veteran only using cocaine "in more recent years." Therefore, the Veteran has provided inconsistent facts during the appeal. When the Veteran was hospitalized in service and complained of severe back pain, the medical board noted that the Veteran had been observed playing an "active game of ping-pong and basketball without apparent impairment from his alleged back pain." Despite being physically active, the board noted that the Veteran would go to the nurse's station to complain of back pain and on one occasion reportedly said, "Be sure you put it in my chart, that my pain is bothering me." When the Veteran was hospitalized in May 1995, he reported three stressors: (1) incoming fire; (2) waking up while being medivaced and seeing a Vietnamese person; and (3) "killing women and children in villages." The third stressor is simply a fabrication. The Veteran was in Vietnam for 19 days. He had never previously reported having killed women and children, nor has he reported such stressor since. There is no evidence corroborating this assertion. In a March 1996 statement in response to VA asking him to identify any in-service stressor, the Veteran wrote only the incoming-fire stressor. In an April 1998 statement from the Veteran, in discussing his service in Vietnam, he never reported "killing women and children in villages." Hence, the Board finds as fact that the appellant did not participate in the killing of women and children. When he was examined in March 2002, the stressors he reported were incoming fire, images of Marines wearing body parts from dead Vietnamese, such as fingers and ears; and vivid recollections of his buddies who had been injured. These latter two stressors had not been reported before. Thus, with the passage of time, the Veteran's story as to what happened during his 19 days in country has evolved. When examined in January 2006, the only stressor the Veteran reported was the incoming fire. The multiple inconsistent reports by the Veteran throughout the appeal about his in-service stressors hurt the Veteran's credibility. Only one stressor has been verified, i.e., the Veteran was exposed to enemy fire. Any other allegation by the Veteran of seeing comrades wearing body parts, such as ears around their necks of dead Vietnamese people, see page 8 of April 1998 statement, and killing women and children is rejected as unverified and not credible. As to the effective-date issue, the Board concludes the contemporaneous evidence is against a finding that the Veteran had posttraumatic stress disorder prior to August 31, 1994. The service treatment records show the Veteran was diagnosed with a passive-aggressive personality disorder. The medical board report shows that the Veteran did not report issues with the combat to which he was exposed. Rather, he seemed to be consumed in his low back pain following his May 1969 exposure to combat. See pages 1 -3 of the report (The patient was preoccupied with his back pain, and expressed resentment that 'nothing was being doing about it.'"). A board of psychiatrists determined there was no evidence of a psychosis, neurosis, or organic brain disease. The Veteran reported a past history at that time, which demonstrated a difficult childhood, including the Veteran physically assaulting his father's girlfriend and her calling the police. (The Board notes that the medical board report does not show that the Veteran reported his father had physically and verbally abused him, as he reported at the January 2006 VA examination. Rather, the only person the Veteran described as demonstrating violence was himself. He had described his father as "quiet." See pages 3-4.) The Veteran also reported having frequent physical conflicts with peers and was suspended from school on three occasions. He stated he had been sent to a disciplinary school for a five-month period during tenth grade because of continued fighting with peers. A conference of staff psychiatrists, following a period of evaluation and treatment, determined the Veteran had a passive-aggressive personality. There was no diagnosis of posttraumatic stress disorder, battle fatigue, or a neurosis associated with service. This is evidence against a finding that the Veteran had posttraumatic stress disorder in service and evidence against an effective date going back to service discharge for the award of service connection. Next, the Veteran was hospitalized at VA in June 1988. There, the Veteran stated he wanted to be treated for posttraumatic stress disorder. He was provided with a posttraumatic stress disorder evaluation during his hospitalization, and the psychologist stated that a diagnosis of posttraumatic stress disorder could not be supported. It was not as though the hospital records were silent for a diagnosis of posttraumatic stress disorder; rather, a medical professional examined the Veteran to specifically determine if he had posttraumatic stress disorder and found he did not have the disorder. This is evidence against a finding that the Veteran had posttraumatic stress disorder in June 1988 and evidence against an effective date going back to June 1988. The Veteran was hospitalized again for a period of almost five months beginning in June 1993. It was noted the Veteran was a "Vietnam combat era veteran." A diagnosis of posttraumatic stress disorder was not entered at that time. This is evidence against a finding that the Veteran had posttraumatic stress disorder from June 1993 to October 1993 and evidence against an effective date going back to June 1993. Lastly, the Veteran was hospitalized in August 1994 for approximately two weeks, which was at the time he submitted his claim for service connection for posttraumatic stress disorder. The hospitalization summary report does not show that the Veteran discussed his combat. The Veteran wanted to be evaluated psychiatrically and expressed to the examiner he wanted a diagnosis of schizophrenia or depression. Neither diagnosis was entered, and posttraumatic stress disorder was not diagnosed. This is evidence against a finding that the Veteran had posttraumatic stress disorder at the time he entered this hospitalization and evidence against an effective date going back to August 25, 1994 (the date he was admitted to the hospital). In a January 2006 VA examination report the examiner did not seem to refute the in-service finding of a personality disorder. Rather, she stated that he did not see any current evidence of a personality disorder. Regardless, even if the examiner had attacked the clinical findings and diagnosis made in the service medical board report, the Board would accord such criticism significantly lessened probative value. The Veteran was evaluated contemporaneously with his service and right after his exposure to incoming fire. The Veteran complained mostly of back pain. The group of psychiatrists made a specific determination that the Veteran did not have evidence of a psychosis, neurosis, or organic brain syndrome. They did not diagnose posttraumatic stress disorder or any similar disorder to include shell shock, soldier's heart, an anxiety neurosis, battle fatigue, combat stress reaction, combat neurosis, etc. On reading the 1969 medical board report it is immediately noted that there are no complaints, concerns, or feelings coming from the Veteran regarding his service in Vietnam. The Board accords the diagnosis of a personality disorder high probative value because that finding was based on the Veteran's state of mind while hospitalized. The findings were detailed, and there was no evidence of an acquired psychiatric disorder at that time. It was not that the medical board's opinion was silent as to whether the Veteran had an acquired psychiatric disorder, but rather it made a specific finding the Veteran did not have one. Hence, the most probative evidence shows that the Veteran did not have an acquired psychiatric disorder in service. Rather, he had a personality disorder which was and still is not a disability for which service connection may be granted. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2010); Beno v. Principi, 3 Vet. App. 439 (1992). The medical board made the determination that the personality disorder was not aggravated during service. Thus, consideration whether the personality disorder was subjected to a superimposed disease or injury which created an additional psychiatric disability is not warranted. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). This same analysis applies to the diagnoses entered when the Veteran was hospitalized in June 1988, June 1993, and August 1994. In the June 1988 records, an examiner specifically evaluated the Veteran to determine if he had posttraumatic stress disorder and found that he did not have such disorder. The Board acknowledges the January 2006 VA examination report which states that the Veteran reported using drugs and alcohol "to calm his nerves and get some sleep," which was "a typical pattern with [posttraumatic stress disorder]." The Board finds that the lack of a diagnosis of either posttraumatic stress or a like disorder, e.g., shell shock, battle fatigue, etc., contemporaneously with his hospitalizations, where the Veteran's behavior was closely observed over a period of months, outweighs the comment by the January 2006 examiner that such drug use is typical of posttraumatic stress disorder, assuming the 2006 examiner was implying that the Veteran had posttraumatic stress disorder at those times. In sum, the preponderance of the evidence is against a finding that the Veteran had posttraumatic stress disorder prior to August 31, 1994. The Board accords significantly more probative value to clinical findings and diagnoses from examiners who evaluated the Veteran contemporaneously in-service and for many years post-service prior to August 1994. The fact that no diagnosis of posttraumatic stress disorder was entered at any time prior to August 31, 1994, is evidence against the claim. The fact that a VA examiner specifically evaluated the Veteran for posttraumatic stress disorder in June 1988 and found that such diagnosis could not be made is evidence against a finding that the Veteran would be entitled to an effective date going back to June 1988. The Board acknowledges the holding in McGrath v. Gober, 14 Vet. App. 28, 35 (2000). In that case, the Court stated that when an original claim for benefits is pending on the date on which the evidence is submitted, it is irrelevant if the evidence was submitted over 20 years after the claim is filed. Id. The Court, however, has held that, "Of course, whether or not that evidence submitted is credible and sufficient to support a determination that an earlier effective date is warranted is a finding of fact for the Board to determine. Id. (Emphasis added.) In this case, the Board has provided its rationale for why it concludes the preponderance of the evidence is against a finding that the Veteran had posttraumatic stress disorder prior to August 31, 1994. There is no objective and contemporaneous evidence showing that the Veteran had an acquired psychiatric disorder while still in service, soon after service discharge, or for approximately 25 years following service discharge. In an Office of General Counsel opinion, VAOPGCPREC 26-97 (July 16, 1997), the General Counsel held that the addition of posttraumatic stress disorder to the rating schedule was a "liberalizing VA issue" for purposes of 38 C.F.R. § 3.114(a), which would allow an effective date going back up to one year prior to the date of claim, if "the claimant met all eligibility criteria for the liberalized benefit on April 11, 1980, the effective date of the regulatory amendment adding the diagnostic code for [posttraumatic stress disorder], and such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement." See page 6. The Office of General Counsel opinion does not provide a basis to award an earlier effective date in this case for two reasons. One, the Veteran did not meet all eligibility criteria for the liberalized benefit on April 11, 1980, as discussed in detail above. Two, and more importantly, the date of claim in this case is August 26, 1969. The date of claim in the case that was the subject matter for the General Counsel opinion was after the liberalizing VA issue. As stated above, an award made based all or in part on the records identified by paragraph (c)(1) is effective on the date entitlement arose or the date VA received the previously-denied claim, whichever is later. The regulation (and the provisions of 38 U.S.C.A. § 5110) does not allow only one date to control the effective date. Rather, Congress and VA recognized that there would be circumstances where the effective date for the award of a benefit should be after the date of claim. Id. The facts in this case are one of those circumstances for all the reasons stated above. Entitlement to an effective date prior to August 31, 1994, for the award of service connection for posttraumatic stress disorder is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to an effective date earlier than August 31, 1994, for the award of service connection for posttraumatic stress disorder is denied. ________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs