Citation Nr: 1124333 Decision Date: 06/27/11 Archive Date: 07/06/11 DOCKET NO. 06-05 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an effective date earlier than February 11, 1993, for the award of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial evaluation in excess of 10 percent for PTSD. 3. Entitlement to service connection for depressive disorder, including as secondary to service-connected PTSD. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. This matter comes to the Board of Veterans' Appeals (Board) from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for PTSD assigning a 10 percent evaluation, effective February 11, 1993. The claims file was then transferred back to the RO in New York, New York. In September 2008, the Veteran testified before a Veterans Law Judge at a Board hearing at the RO. A transcript of the hearing is of record. In September 2010, the Veteran was informed that the Veterans Law Judge that conducted his September 2008 hearing was no longer employed at the Board. He was asked whether he wished to appear at another hearing. The Veteran did not respond. The Veteran's claims were before the Board and remanded in April 2009. While the Veteran was previously represented by Disabled American Veterans, a September 2010 report of contact shows that he desired to proceed unrepresented. The Board recognizes this change. The Board notes that the issue of entitlement to service connection for depressive disorder, including as secondary to PTSD, has been added above. Under Clemons v. Shinseki, 23 Vet. App. 1 (2009), a claim for benefits for one psychiatric disability also encompasses benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim. There is evidence of record suggesting that the Veteran has depressive disorder that may be aggravated by his PTSD or his service. As such, the Board accepts the Veteran's notice of disagreement with the initial evaluation assigned to PTSD as a notice of disagreement with the issue of entitlement to service connection for depressive disorder, also as secondary to PTSD. As such, that issue is before the Board. The Veteran also has submitted statements and testimony suggesting a claim for clear and unmistakable error (CUE) in a July 1984 Board decision that, in part, denied service connection for PTSD. The Board reopened the claim in its March 2000 decision, and after remand, the RO granted service connection in the January 2000 rating action. Should the Veteran wish to assert CUE in the 1984 Board decision, he should file a motion for revision of the decision based on clear and unmistakable error; such motion must identify specific error or errors of fact and law in the decision, the legal and factual basis for the allegations and why the result would have been different but for the alleged error. 38 C.F.R. § 20.1404 (2010). Without such motion, the Board does not have jurisdiction over the issue. The issues of entitlement to an initial evaluation in excess of 10 percent for PTSD and entitlement to service connection for depressive disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In July 1984, the Board denied the Veteran's claim of entitlement to service connection for a psychiatric disorder, including PTSD. 2. The next communication from the Veteran was a July 1985 letter from the Veteran's representative, who requested a 60-day extension for submitting evidence. 3. In an August 1985 letter, the RO informed the Veteran that, in order to reopen his claim for a nervous condition, he needed to submit new and material evidence. The Veteran did not furnish additional evidence in response to this request within one year. 4. In an August 1985 statement, the Veteran requested a hearing; however, he cancelled the hearing in a September 1985 statement, indicating that he would be submitting new and material evidence in the near future to reopen his claim. 5. The next correspondence regarding the claim for PTSD was a letter received from the Veteran's United States Senator, which was dated February 11, 1993. 6. While the Veteran first reported the suicide of a friend in service during his August 1983 Board hearing, he did not provide the name of this individual until he submitted his stressor statement in February 2001 7. The U.S. Armed Services Center for Research of Unit Records (USASCRUR) confirmed this stressor in April 2003. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to February 11, 1993, for a grant of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5101(a), 5110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.151, 3.155, 3.156(c), 3.158, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Effective May 30, 2008, 38 CFR 3.159 was revised to clarify that no duty to provide section 5103(a) notice arises "[u]pon receipt of a Notice of Disagreement" or when "as a matter of law, entitlement to the benefit claimed cannot be established." 38 C.F.R. § 3.159 (b)(3) (2010). The notice requirements pertinent to the issue addressed in this decision have been met. As this is an appeal from the assignment of an initial effective date, no further duty to inform the Veteran of the requirements of VCAA exists. Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, the Veteran was provided with notice regarding the assignment of effective dates in an April 2009 letter. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thereafter, the claim was readjudicated in an August 2010 supplemental statement of the case. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the claim does not turn on the medical evidence or treatment records. Rather, the outcome of this case is based upon the evidence and statements that are contained in the record prior to the February 11, 1993, effective date. Therefore, any further efforts to request or obtain additional evidence are unnecessary, and the evidence of record is adequate to make a final decision on this claim. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the Veteran. II. Analysis 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, the effective date of an award based on an original claim for service connection, a claim re-opened after final disallowance, or a claim for increase "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). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim, a claim re-opened 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 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. 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 C.F.R. § 3.1(p). 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 an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. 38 C.F.R. § 3.158 (a). It appears from the Veteran's statements and testimony that he believes that the effective date for the award of service connection should be in 1981, when he was awarded Social Security Administration benefits. He also testified during his Board hearing that he believed that the 1984 Board decision was erroneous, and he should be compensated back until then. 38 C.F.R. § 3.156(c) provides: Service department records. (1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA 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, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. (2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. (3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c) was amended effective September 6, 2006. Prior to that date, it provided as follows: (c) Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim. A review of the record shows that the Veteran initiated a claim for service connection for nervousness in May 1981. The RO adjudicated and denied the claim in November 1981. The Veteran appealed the claim to the Board. During his August 1983 Board hearing, the Veteran described a stressful event during service in which a friend of his committed suicide. The Veteran had tried to help this friend prior to his death. The Veteran did not provide a name for this deceased Veteran or a time period during which the suicide occurred. The Board denied the Veteran's claim of entitlement to service connection for a psychiatric disorder, including PTSD, in July 1984. After receiving correspondence from the Veteran in July 1985 requesting additional time to submit evidence, the RO informed the Veteran in August 1985 that his claims had been denied, and he needed to submit new and material evidence to reopen then. The Veteran did not furnish additional evidence within one year of this request. Thereafter, the Veteran requested a personal hearing in August 1985 but cancelled the hearing request in a September 1985 statement, in which he indicated that he would be submitting new and material evidence in the near future to reopen his claim. The next correspondence received regarding the Veteran's claim was a February 11, 1993, letter from the Veteran's United States Senator. In a February 2001 stressors statement, the Veteran provided the first name and a date range for the incident where his friend committed suicide during service. A March 2003 Report of Contact shows that the Veteran provided a last name initial for the service member who committed suicide. In April 2003, USASCRUR confirmed the suicide death of a person by the same name that was provided by the Veteran, in the Veteran's Company, and during the range of dates that he provided. Following examination, the Veteran was awarded service connection in a January 2004 rating decision, effective February 11, 1993. In the rating decision, the RO awarded service connection for PTSD on the basis of the stressor involving the suicide of his friend during service. Based on a review of the record, the Board finds that the Veteran's claim must be denied. Specifically, service connection for a psychiatric disorder, to include PTSD was denied in a July 1984 Board decision, which was final. While the Veteran contacted the RO after that decision, he was told that he needed to submit new and material evidence to reopen his claim. After requesting and then cancelling a hearing request, the Veteran indicated that he would soon be submitting new and material evidence to reopen his claim. However, the Veteran did not submit such evidence, and no correspondence dated prior to February 11, 1993, could be interpreted as an informal claim for service connection for PTSD. Given that the Veteran did not furnish the requested additional evidence within a year of the RO's August 1985 letter, the claim was abandoned. See 38 C.F.R. § 3.158. The Veteran has not asserted that he submitted a subsequent claim prior to February 11, 1993. To the extent that the Veteran has contended that there is CUE in the Board's July 1984 decision, the Board has addressed these assertions in the Introduction above, to include informing the Veteran of the steps he needs to take to initiate such a claim. Finally, the Board finds that the Veteran's claim was eventually granted in January 2004 based, at least in part, on the April 2003 response from USASCRUR, which verified the Veteran's claimed stressor. However, while the Veteran mentioned this particular stressor during his August 1983 Board hearing, he provided no details with regard to names or dates with which VA could attempt to corroborate his stressor. That information was not provided by the Veteran until February 2001 and March 2003. As such, VA could not have obtained this service information prior to March 2003. Therefore, under 38 C.F.R. § 3.156(c)(2), an earlier effective date is not applicable based upon newly obtained service records. Based on a review of the record as a whole, and pursuant to the analysis contained herein, the Board finds that the provisions of 38 C.F.R. § 3.156(c), in effect before and after September 6, 2006, are not applicable in this case. The July 1984 Board decision is final. Therefore, the Veteran has been assigned the earliest possible effective date for the grant of service connection for PTSD. Consequently, entitlement to an effective date earlier than February 11, 1993, is denied. ORDER An effective date prior to February 11, 1993, for the award of service connection for PTSD is denied. REMAND The Board finds that the claims of entitlement to an initial evaluation in excess of 10 percent for PTSD and entitlement to service connection for depressive disorder, including as secondary to PTSD, require further development prior to final adjudication. The evidence of record shows that the Veteran has been diagnosed as having depressive disorder or dysthymic disorder in addition to his PTSD throughout the appeal period. The VA examination report in December 1994 shows an impression that the Veteran had been chronically depressed since childhood, which had been worsened by military service. The examiner that evaluated the Veteran in May 2003 indicated that the Veteran had recurrent major depression that may have been initially precipitated by his friend's suicide during service. A July 2003 VA examination report indicates that it was not possible to ascribe the Veteran's depressive disorder to the events of service. However, his guilt about his friend was a preeminent rumination in his current state. The VA examiner that evaluated the Veteran in June 2010 indicated that his depression was related to multiple life stressors, including severe medical problems, subsequent loss of functional independence, social isolation, and increased anxiety. His PTSD was mild and characterized by intermittent re-experiencing, avoidance, and hypervigilent symptoms. His depression was moderate to severe in nature. Based on this evidence, the Board finds that the Veteran's claim of entitlement to an initial evaluation in excess of 10 percent for PTSD is inextricably intertwined with the issue of entitlement to service connection for depressive disorder, also claimed as secondary to PTSD. The evidence of record is conflicting as to whether the Veteran's depressive disorder was aggravated by his service or his PTSD. The Board finds that an opinion is needed to specifically answer this question prior to final adjudication of the Veteran's claims. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any diagnosed psychiatric disorder other than PTSD. The claims file should be made available to the examiner for review. All indicated tests and studies should be accomplished. a. The examiner should identify all psychiatric disorders present. b. Thereafter, the examiner should provide an opinion as to whether any of the Veteran's disorder(s) pre-existed service, i.e. the depressive disorder, and/or the dysthymic disorder, and if so, whether any disorder was aggravated by service. c. For any disorder that did not exist prior to service, the examiner should opine as to whether it is at least as likely (a 50 percent probability or greater) that the disorder is related to service, to include whether it is secondary to or aggravated by his PTSD. 2. Thereafter, readjudicate the Veteran's claims for service connection for depressive disorder, including as secondary to PTSD, and entitlement to an initial evaluation in excess of 10 percent for PTSD. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs