Citation Nr: 1124622 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 09-43 832 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an effective date earlier than December 17, 2008, for the grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a compensable disability rating for PTSD for the period from November 15, 1996, to December 16, 2008. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The issue of entitlement to a compensable disability rating for PTSD for the period from November 15, 1996, to December 16, 2008, 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 June 2009 rating decision granted service connection for PTSD based in part on relevant service department records that existed but had not been obtained and associated with the claims file at the time of the January 2000 Board decision denying this benefit. 2. The Veteran's initial claim of entitlement to service connection was received by VA on June 13, 1996; but a diagnosis of PTSD was not evident until November 15, 1996. CONCLUSION OF LAW The criteria for the assignment of an effective date of November 15, 1996, for the grant of service connection for PTSD have been met. 38 U.S.C.A. § 5110(a) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.156(c)(1), (3), 3.400(opening paragraph), (r) (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, VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). The decision made herein as to the first issue on appeal is fully favorable to the Veteran. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist regarding this issue, such error was harmless and will not be discussed. II. Earlier Effective Date The Veteran seeks an effective date for the grant of service connection for PTSD earlier than December 17, 2008, the date he filed an application to reopen his claim for this benefit. He and his representative present numerous arguments in this regard. One such argument is that June 5, 1996, the date the Veteran signed his original claim, is the appropriate effective date. Another such argument is that November 15, 1996, the date a diagnosis of PTSD first is documented in the evidence of record, is the appropriate effective date. The effective date of an award of compensation generally is fixed in accordance with the facts found, but cannot be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a). Thus, an award of compensation based on a claim reopened after final disallowance generally is effective as of the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(opening paragraph), (r). An exception to these general rules exists, however. 38 C.F.R. § 3.156(c)(1) provides that a previously finally denied claim is to be reconsidered if relevant official service department records that existed and had not been associated with the claims file when the claim initially was decided subsequently are received and associated with the claims file. Since the claim is reconsidered rather than reopened, an award of compensation based all or in part on such relevant official service department records is effective on the date entitlement arose or the date the previously decided claim was received, whichever is later, or such other date as may be authorized by additional provisions applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). In other words, "an effective date as early as the date of the original claim up to the date of the claim to reopen" is authorized. Vigil v. Peake, 22 Vet. App. 63, 65 (2008). At the outset, the Board notes that establishing service connection for PTSD requires (1) medical evidence diagnosing the condition in conformity with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV), (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by medical evidence, between the current symptomatology and the established in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125(a); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The Veteran signed his original claim of entitlement to service connection for PTSD on June 5, 1996. This claim was received by VA on June 13, 1996. In a November 1996 rating decision, the RO denied the claim because the evidence did not include a confirmed diagnosis of PTSD. Evidence considered in this regard included the opinion of the examiner who conducted a VA PTSD examination in July 1996 that the Veteran met most but not all of the DSM-IV criteria for a PTSD diagnosis and an August 1996 letter from J.F., a social worker at the Vet Center in Lexington, Kentucky, indicating that the Veteran's presenting problems were consistent with symptoms of PTSD. Also included were August 1996 statements from W.R., the Veteran's wife, and N.R., the Veteran's mother, describing the Veteran before and after his service in the RVN. The evidence also included information concerning the Veteran's alleged in-service stressors and the relationship between them and his psychiatric state as of the time of the November 1996 rating decision. Specifically, service personnel records showed that the Veteran served with the 136th Maintenance Company (Light) in the Republic of Vietnam (RVN) from July 1966 to July 1967. The Veteran indicated in a July 1996 statement and during his VA PTSD examination that same month that this company mostly was in the "Tuduia" or "Tuy Hoa" area of the RVN. He recounted being under mortar attack and sniper fire a great deal while there. Combat stress in the RVN was noted by the examiner who conducted the VA PTSD examination as a result. Further, J.F. noted that the Veteran was attending group therapy for those with problems following combat experience and conveyed his belief that the Veteran's "military experience has contributed to an emotional state which impairs his function in several areas" in his August 1996 letter. Subsequently, the Veteran perfected an appeal of the November 1996 rating decision. The Board issued a decision in January 2000 denying the Veteran's claim because the preponderance of the evidence established that he did not have PTSD. In addition to the above evidence regarding diagnosis, consideration was given to the following. J.F. reiterated that the Veteran's presenting problems were consistent with symptoms of PTSD in an October 1996 letter (although dated before the November 1996 rating decision, it was received thereafter). Treatment records from Dr. B.K. dated from October to December 1998 reflected that the Veteran had ongoing problems with the Vietnam War and contained a diagnosis of PTSD. Finally, the examiner who conducted a second VA PTSD examination in May 1999 reviewed Dr. B.K.'s treatment records and determined that it did not include adequate information to support a PTSD diagnosis. The examiner rather agreed with the previous VA examiner that the Veteran met most, but not all, of the required criteria for a DSM-IV diagnosis of PTSD. Mention was made by the Board of the evidence concerning the Veteran's claimed in-service stressors and the relationship between them and his psychiatric state, although no analysis was made in this regard given the conclusion that a PTSD diagnosis had not been established. In addition to the above evidence in this regard, an October 1996 letter from J.F. reiterated that the Veteran's "military experience has contributed to an emotional state which impairs his function in several areas." The Veteran indicated in a January 1998 statement that he was attached to the 136th Light Maintenance Company in the RVN and came under mortar attack there. He testified at his December 1998 Decision Review Officer (DRO) hearing that he experienced numerous mortar attacks and instances of sniper fire while stationed close to the village of "Thu Da Hoa" in the RVN. He similarly testified at his October 1999 Travel Board hearing that he experienced mortar attacks and small arms fire as part of "the 136th" working in the "Tutuwa" region of the RVN. VA received the Veteran's application to reopen his claim of entitlement to service connection for PTSD on December 17, 2008. Service connection was granted for PTSD with a 100 percent evaluation effective December 17, 2008, in a June 2009 rating decision. In addition to all of the above evidence, the RO took into account the following. With respect to establishing a diagnosis of PTSD, treatment records identified by the Veteran as being from the Johnson City Vet Center reflected such a diagnosis as early as November 15, 1996. Social Security Administration (SSA) records included January to April 1999 treatment records from the Cumberland River Comprehensive Care Center showing that the Veteran served in the RVN and diagnosing him with PTSD as well as an October 2000 examination in which it was noted that the Veteran served in the RVN and in which PTSD by the Veteran's subjective comments was diagnosed. Additional treatment records from the Cumberland River Comprehensive Care Center dated in December 2008 contained a PTSD diagnosis after the Veteran discussed some of his experiences in the RVN. VA treatment records documented a diagnosis of PTSD as early as February 2009. Treatment records dated in March and April 2009 from Dr. S.R. and Harlan-ARH Hospital show the Veteran's report of being in the RVN and a PTSD diagnosis. Finally, a diagnosis of PTSD pursuant to the DSM-IV was rendered at a May 2009 VA PTSD examination. The June 2009 rating decision conceded that the Veteran was a Vietnam combat Veteran and that he was exposed to stressful events while in combat. In this regard, the RO considered that he noted in his application to reopen his claim as well as in January and February 2009 statements that he was subject to mortar attacks, small arms fire, and sniper fire repeatedly during his service with the 136th Light Maintenance Company in the RVN. He additionally noted in both statements that such events took place in the Tuy Hoa region of the RVN. One page from the Lessons Learned, Headquarters, 69th Maintenance Battalion, dated in February 1967 and the 1966 Annual Historical Supplement of the 69th Maintenance Battalion showed that this Battalion was assigned the 136th Light Maintenance Company upon arrival and posting to Cam Ranh Bay in the RVN in July 1966. They also showed that the 136th Light Maintenance Company was reassigned to the 532nd Supply & Service Battalion based in Tuy Hoa in mid-November 1966. One page purportedly from the Operational Report Lessons Learned for the Tuy Hoa Subarea Command for the period ending in April 1967 stated that hostile incidents continued to occur in the area. A page from an unidentified document marked confidential discussed an enemy attack that occurred on June 10, 1967. An unspecified Weekly Intelligence Review dated in early July 1967 noted that enemy forces launched what appeared to be coordinated attacks in the general vicinity of Tuy Hoa on June 16. With respect to the relationship between the Veteran's PTSD and his confirmed in-service combat stressors, the RO pointed to the opinion of the examiner who conducted the May 2009 VA PTSD examination. This examiner determined that the Veteran's PTSD was due to his verified combat history. Given the above, the Board finds that the Veteran is entitled to an effective date earlier than December 17, 2008, for the grant of service connection PTSD. While the January 2000 Board decision arguably denied PTSD on a basis that not affected by the additional service department records submitted later, it appears that in the June 2009 rating decision, the RO decided to provide the Veteran a new examination based on the details of combat provided by such service department records. Therefore, considering the applicable laws and regulations in a light most favorable to the Veteran, each of the requirements of 38 C.F.R. § 3.156(c)(1) has been satisfied. The page from the Lessons Learned, Headquarters, 69th Maintenance Battalion; the Annual Historical Supplement of the 69th Maintenance Battalion; the page purportedly from the Operational Report Lessons Learned for the Tuy Hoa Subarea Command; the unidentified document marked confidential; and the unspecified Weekly Intelligence Review constitute service department records. Indeed, the term service department records is defined to include those that are "related to a claimed in-service event, . . . regardless of whether such records mention the [V]eteran by name." 38 C.F.R. § 3.156(c)(1)(i). These records are relevant in that they concern the company the Veteran was assigned to during his service in the RVN and in that they, coupled with all the other evidence of record, provided a sufficient basis upon which to grant service connection. They existed as of the initial November 1996 rating decision by the RO and January 2000 decision by the Board because each was dated in 1966 or 1967. However, they were not associated with the claims file until after the Veteran's submitted his application to reopen his claim in late 2008. Two situations exist where, despite all of the requirements of 38 C.F.R. § 3.156(c)(1) being met, a claim would not be reconsidered pursuant to this provision. Specifically, 38 C.F.R. § 3.156(c)(2) provides that 38 C.F.R. § 3.156(c)(1) "does not apply to records that VA could not have obtained when it decided the claim because the records did not exist" or because the Veteran "failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center [(JSRRC)], or from any other official source." Neither of the situations noted in 38 C.F.R. § 3.156(c)(2) is found in this case. The service department records in this case existed at the time of the initial November 1996 rating decision by the RO and the Board's January 2000 decision, as discussed above. The Board notes that they ultimately were submitted by the Veteran. However, enough information had been supplied for them to be identified and obtained on his behalf from the JSRRC or other appropriate source as of the initial November 1996 rating decision by the RO and January 2000 decision by the Board. Service personnel records, which indicate the Veteran's dates of service in the RVN as well as the company to which he was assigned while there, have been part of the record since he filed his claim. He also has indicated that his company was located mostly in the Tuy Hoa region of the RVN since he filed his claim. As such, the Veteran's claim was to be reconsidered rather than reopened pursuant to 38 C.F.R. § 3.156(c)(1). The RO determined that the claim had been substantiated, based in part on the service department records verifying the Veteran's in-service stressors, and granted service connection. 38 C.F.R. § 3.156(c)(3) thus directs that the resulting award of compensation be made effective on the date entitlement arose or the date the previously decided claim was received, whichever is later. The Veteran's previously decided claim, although signed by him on June 5, 1996, was received by VA a few days later on June 13, 1996. A diagnosis of PTSD, one of the requirements necessary for the Veteran to establish entitlement to service connection, first is reflected in the November 15, 1996, Johnson City Vet Center treatment record. Prior to this date, the evidence of record did not confirm a PTSD diagnosis. The August and October 1996 letters from J.F. noted that the Veteran's problems were consistent with symptoms of PTSD but did not actually diagnose this disorder. Further, the examiner who performed the July 1996 VA PTSD examination determined that the Veteran met most, but not all, of the criteria for a DSM-IV diagnosis of PTSD. November 15, 1996, the date his entitlement to service connection arose, is later than June 13, 1996, the date his claim was received. November 15, 1996, accordingly constitutes the appropriate effective date. The Board finally notes that no consideration of the other arguments presented by the Veteran and his representative is necessary. This is because they either advocate for an effective date later than the November 15, 1996, effective date awarded herein or are not directly on point to the matter at hand. ORDER An effective date of November 15, 1996, for the award of service connection for PTSD is granted. REMAND The issue of entitlement to a compensable disability rating for PTSD for the period from November 15, 1996, to December 16, 2008, unfortunately must be remanded. Although the Board sincerely regrets the additional delay, adjudication cannot proceed without further development. 38 C.F.R. § 3.156(c)(4) provides, in pertinent part, as follows: 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 . . . This regulation has not been applied as of yet to the Veteran's case. Such application must be undertaken by the RO in the first instance on remand because doing so is necessary to award the appropriate disability evaluation or evaluations for the Veteran's PTSD for the period from November 15, 1996, the effective date for the grant of service connection for PTSD awarded herein, to December 16, 2008, the day before the Veteran's 100 percent disability evaluation took effect. In this regard, the Board notes that VA's duty to assist the Veteran in substantiating his claim includes obtaining a medical examination and/or medical opinion when necessary. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). One instance in which such an examination and/or opinion is necessary for adjudication to proceed is when the available medical evidence is inadequate. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Arrangements therefore shall be made on remand for an appropriate medical examination to be conducted and/or an appropriate medical opinion to be rendered if, and only if, such is deemed necessary to determine the severity of the Veteran's PTSD for the period from November 15, 1996, to December 16, 2008. Accordingly, the case is REMANDED for the following action: 1. Review the Veteran's claims file and undertake any development indicated. This shall include obtaining and associating with the claims file, after securing any necessary authorization, additional pertinent records identified by him during the course of this remand. This also shall include, if deemed necessary, arranging for an appropriate VA medical examination to be conducted and/or an appropriate medical opinion to be rendered regarding the severity of his PTSD for the period from November 15, 1996, to December 16, 2008. 2. Then readjudicate the issue of whether a disability evaluation of 100 percent or a lesser disability evaluation for PTSD is warranted for the period from November 15, 1996, to December 16, 2008. If the benefit sought on appeal is not granted in full, the Veteran and his representative shall be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs