Citation Nr: 1126697 Decision Date: 07/18/11 Archive Date: 07/21/11 DOCKET NO. 08-26 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than April 17, 2007 for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The appellant had active service from March 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction rests with the Oakland, California RO. The Board notes that in his August 2008 VA Form 9 Substantive Appeal the appellant expressed the desire to appear for a BVA hearing. He was scheduled for a Travel Board hearing in May 2011. However, he failed to appear. FINDINGS OF FACT 1. The appellant's original claim for service connection for PTSD was received on May 27, 2005. 2. The appellant was denied service connection for PTSD in a December 2005 rating decision. The appellant was informed of the decision in a January 2006 letter, he did not appeal and no evidence was received within a year of the rating decision. 3. The appellant's application to reopen the claim of entitlement to service connection for PTSD was received by the RO on April 17, 2007. 4. By rating decision in February 2008, the RO granted service connection for PTSD, and assigned an effective date of April 17, 2007. 5. Relevant records received from the Joint Services Records Research Center (JSRRC) in November 2007 constitute relevant official service department records that existed and had not been associated with the claims file when the RO first decided the appellant's claim. 6. The RO had sufficient information in connection with the appellant's original claim for service connection for PTSD to obtain the records from the JSRRC. CONCLUSION OF LAW The criteria for the assignment of an effective date of May 27, 2005 for the grant of service connection for PTSD have been met. 38 U.S.C.A. § 5110 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.156(c), 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with the notice required under the VCAA by letter in May 2007. We note that the appellant is challenging the effective date assigned following the grant of service connection. In Dingess, the U.S. Court of Appeals for Veterans Claims held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, supra. at 490-191. Thus, VA's duty to notify in this case has been satisfied. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. We note that appropriate and adequate examinations have been conducted, and available service records and pertinent post service medical records have been obtained. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims. The evidence of record provides sufficient information to adequately evaluate the claims, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Legal Criteria and Analysis The appellant has appealed the denial of an effective date earlier than April 17, 2007 for the grant of service connection for PTSD. Section 5110(a) of title 38, U.S. Code, governs the assignment of an effective date for an award of benefits: The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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. § 5110(a). The implementing regulation similarly states that the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service. See 38 C.F.R. § 3.400. Thus, the effective date for any award based on the reopening of the appellant's claim must be based on the date of receipt of his claim to reopen. See 38 U.S.C. § 5110(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). When a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen. Bonhomme v. Nicholson, 21 Vet. App. 40 (2007). As to what constitutes a claim, a claim is defined as 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); 3.155 (2010). Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). Further, under 38 C.F.R. § 3.157 (b)(1) (2010), a report of examination or hospitalization may constitute an informal claim. 38 C.F.R. § 3.156(c) provides that notwithstanding any other section of 38 C.F.R. Part 3, 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 38 C.F.R. § 3.156(a) (concerning the requirement to reopen a previously finally denied claim with new and material evidence). This includes (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 38 C.F.R. § 3.156(c) 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. 38 C.F.R. § 3.156(c)(2) provides that such records do 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 JSRRC, or from any other official source. Here, the evidence shows that in an April 2005 examination the appellant reported that he served in Cu Chi, Ta Nhen and Da Tieng. He reported being in the combat zone which included getting mortared every night. He related that they were located inside of the Michelin Rubber Plantation off the Ho Chi Minh Trail. According to the appellant, they were pounded with sappers and grenades, and rocketed and mortared. During this examination, the appellant's service dates and his military occupational specialty (MOS) were listed. It was also noted that he supported the 25th Infantry Wolfhounds. The appellant's original claim for service connection for PTSD was received on May 27, 2005. In October 2005, the appellant was asked to submit additional information regarding his stressors. He did not submit any additional information. His claim for service connection for PTSD was denied in a December 2005 rating decision. The RO found that a stressful event had not been verified. He was informed of the decision in a January 2006 letter. The appellant did not appeal that decision and it became final. Thereafter, on April 17, 2007, the RO received the appellant's application to reopen the claim of entitlement to service connection for PTSD. In November 2007, after JSRRC team review, the appellant's stressor had been verified. It was determined that the appellant was assigned to 587th Sig Co. in Vietnam from April 1969 to July 1970 and that in June 1969 there was a documented enemy mortar attack on the U.S. forces in Tay Ninh City. As such, the appellant's stressor was verified. By a rating decision in February 2008, the RO granted service connection for PTSD, and assigned an effective date of April 17, 2007, the date of the appellant's claim to reopen. Based on the evidence of record, the Board finds that an effective date of May 27, 2005 for the grant of service connection for PTSD is warranted. In this regard, we note that the claim for service connection for PTSD was granted in February 2008 based on information received from the JRSSC in November 2007. At that time, the JRSSC verified the appellant's stressor based on a finding that his unit was subject to enemy mortar attack. Importantly for this case, the Court of Appeals for Veterans Claims recently held in Mayhue v. Shinseki, 24 Vet. App. 273 (2011), that records received from the JSRRC (or one of its predecessors, the USCRUR or ESG), which substantiated that the base camp of a Veteran's unit had come under fire, was a basis for establishing an effective date pursuant to 38 C.F.R. § 3.156(c) based on the date of receipt of a previously denied claim for PTSD, even where the Veteran had in connection with the earlier claim failed to cooperate in the development of the claim by not responding to VA requests for additional information regarding the specifics of his claimed stressors. Similarly, the appellant in the current appeal did not submit any additional information when requested to do so by the RO in October 2005. However, we find that he had provided sufficient evidence to facilitate a request for the service department to determine, for example, whether it was true that his unit in Vietnam had come under attack. At that time, the RO had the appellant's statements regarding mortar and rocket attacks, his dates of service, MOS and that his unit supported the 25th Infantry Wolfhounds. The above information was sufficient for the RO to request verification of his stressors at that time. However, the RO did not conduct any search in this regard nor did they make any attempt for verification based on the information that was in the file at that time. We note that the appellant has not changed his statements regarding his stressors but has been consistent in his assertions. We also note that his stressor was verified based on the same information that was contained in the file at that time of the December 2005 denial. In light of the foregoing, the Board finds that records received from the JSRRC in November 2007 constitute, within the meaning of 38 C.F.R. § 3.156(c), relevant official service department records that existed and had not been associated with the claims file when the RO first decided the appellant's claim. These were service records that were related to the appellant's claimed PTSD stressors, and that were forwarded by the service department after the December 2005 denial of service connection for PTSD. Although the RO had sufficient information to obtain the records from the JSRRC prior to the December 2005 denial, they did not do so. Accordingly, the proper effective date for service connection for PTSD is May 27, 2005, the date of receipt of the appellant's original and prior claim for service connection PTSD. See 38 C.F.R. § 3.159(c); Mayhue, 24 Vet. App. at 280; Vigil v. Peake, 22 Vet. App. 63 (2008). ORDER An effective date earlier of May 27, 2005 for the grant of service connection for PTSD is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs