Citation Nr: 1127285 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 08-39 805 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an effective date earlier than January 12, 2001, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.M. Rutkin, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1972 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on remand from the Court of Appeals for Veterans Claims (Court). In an April 2011 Order, the Court endorsed an April 2011 joint motion for remand, vacated the May 2010 Board decision denying entitlement to an earlier effective date for the grant of service connection for PTSD, and remanded the matter for compliance with the instructions in the joint motion. This appeal arises from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which granted service connection for PTSD with an effective date of January 12, 2001. The Board remanded the claims in May 2004 and May 2005. In January 2007, the Board dismissed the Veteran's motion to reverse a May 1986 RO decision denying service connection for PTSD on the basis of clear and unmistakable error (CUE) in that decision as the Veteran had filed a statement indicating he wanted to withdraw this motion. The Veteran testified at an October 2007 hearing at the Indianapolis RO, and at a February 2010 videoconference hearing before the undersigned. Transcripts of both hearings have been associated with the claims file. FINDINGS OF FACT 1. The Veteran initially submitted a claim of entitlement to service connection for PTSD on January 8, 1986, which was denied in a May 1986 rating decision; he was informed of the decision and his appellate rights in a May1986 letter; he did not appeal, and the decision became final. 2. The Veteran's petition to reopen his claim for PTSD was administratively denied in June 1988; the Veteran was informed of the decision and his appellate rights in a July 1988 letter; he did not appeal, and the decision became final. 3. The August 2002 rating decision reopened and granted the Veteran's service connection claim for PTSD and assigned an effective date of January 12, 2001, the date of receipt of the Veteran's petition to reopen his claim. 4. Unit history records provided by the United States Armed Services Center for Unit Records Research (CURR), formed in part the basis of the grant of service connection for PTSD in the August 2002 rating decision; these unit history records could have been obtained during the original claim based on information in the claims file at the time of the May 1986 rating decision. CONCLUSION OF LAW 1. The May 1986 rating decision, denying service connection for PTSD, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 2. The June 1986 rating decision, denying the Veteran's petition to reopen his claim for PTSD, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010). 3. Entitlement to an effective date of January 8, 1986, but no earlier, for the grant of service connection for PTSD is warranted. 38 U.S.C.A.§ 5110 (West 2002); 38 C.F.R. §§ 3.156(c), 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See id. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. I. Veterans Claims Assistance Act of 2000 (VCAA) Entitlement to an effective date of January 8, 1986 for the grant of service connection for PTSD has been granted, as discussed below. As this represents the earliest effective date for the award of benefits allowed by law, the Board finds that no prejudice can exist and any error related to the VCAA on this issue is moot. See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Veteran claims entitlement to an effective date earlier than January 12, 2001 for the grant of service connection for PTSD. For the reasons that follow, the Board finds that an effective date of January 8, 1986 is warranted. A rating decision becomes final if the Veteran does not timely perfect an appeal of the decision. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200, 20.302, 20.1103 (2010). Where there has been a prior final denial, the award of VA benefits generally may not be effective earlier than the date VA received the particular application for which the benefits were granted. Washington v. Gober, 10 Vet. App. 391 (1997); 38 C.F.R. § 3.400(q)(2)). However, 38 C.F.R. § 3.156(c)(1) provides an exception to the rule of finality in certain cases where relevant official service department records are subsequently associated with the claims file. Specifically, 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. Id. An award based all or in part on such records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. Id. § 3.156(c)(3). However, such records do not include records that VA could not have obtained when it previously decided the claim because the records did not exist at the time or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the appropriate official source. Id. § 3.156(c)(2). A 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. Id. § 3.156(c)(4). Here, the Veteran's initial service connection claim for PTSD was received by VA on January 8, 1986. A May 1986 rating decision denied the Veteran's claim. He was notified of the decision and his appellate rights in a May 1986 letter and did not appeal. Consequently the decision became final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. In May 1988, the Veteran filed a petition to reopen his service connection claim for PTSD. The petition to reopen was administratively denied in June 1988 because the Veteran had not submitted any new and material evidence. The Veteran was informed of the decision and his appellate rights in a July 1988 letter. He did not appeal and consequently the decision became final. See id. In January 2001, the Veteran petitioned to reopen his service connection claim for PTSD. The claim was reopened and granted in an August 2002 rating decision with an effective date of January 12, 2001, the date of the Veteran's petition to reopen. In its May 2010 decision denying entitlement to an earlier effective date, the Board found that 38 C.F.R. § 3.156(c) did not apply and thus the January 12, 2001 effective date of service connection was proper. See 38 C.F.R. § 3.400(q)(2). In this regard, the Board stated that the Veteran had not identified the stressor at the time of the May 1986 denial of PTSD upon which the subsequent grant of service connection in the August 2002 rating decision was based. Specifically, the Board found that the only possible in-service stressor mentioned by the Veteran at the time of the May 1986 rating decision was the accidental killing of a Vietnamese civilian. This incident was never verified by CURR and was not the basis of the grant of PTSD. The August 2002 grant of service connection for PTSD was based on the fact that subsequent unit history records provided by CURR showed that the Veteran's unit had been subjected to enemy attacks while stationed in Vietnam. Thus, the Board concluded that the Veteran had failed to provide sufficient information at the time of his original January 1986 claim for VA to locate or obtain unit history records to verify the stressor upon which the grant of service connection for PTSD was subsequently based. See 38 C.F.R. § 3.156(c)(2). Thus, the Board found that an earlier effective date under 38 C.F.R. § 3.156(c) could not be awarded. As pointed out in the April 2011 joint motion for remand, after the Board's May 2010 decision was rendered, the Court recently clarified in Mayhue v. Shinseki, 24 Vet. App. 273, 279-80 (2011) that under 38 C.F.R. § 3.156(c), the fact that a confirmed stressor upon which the grant of PTSD is based had not previously been identified by the Veteran in an earlier claim does not automatically trigger § 3.156(c)(2). Rather, the determinative factor is whether VA had sufficient information to verify a stressor at the time of the original claim, such as through the service personnel records, notwithstanding the fact that the stressor was not one previously identified by the Veteran. Id. In Mayhue, the claimant had not provided any information to enable VA to corroborate his alleged stressors at the time of his original claim. Id. The Court noted that VA ultimately awarded benefits for PTSD based on attacks on the base camp where the claimant's unit was stationed in Vietnam, rather than on any of the claimant's alleged stressors. Id. at 280. However, the information that CURR used to verify the stressor was the unit in which the claimant served and his dates of duty in Vietnam. Id. The Court emphasized that this information had always been a part of the claims file at the time of the original claim. Id. Notwithstanding the fact that the claimant had not cooperated with earlier efforts to verify his alleged stressors by providing more information, and notwithstanding the fact that the stressor verified was not one that had previously been mentioned by the claimant, the Court found that VA's failure to verify the stressor was the result of an administrative error in locating the unit history records. Id. Thus, the Court concluded that the Board erred when it applied § 3.156(c)(2) in finding that the claimant failed to provide sufficient information to obtain the relevant service department records. Id. Similarly, in the present case, the Veteran's unit history records were obtained by CURR solely through information contained in the Veteran's service personnel records showing the unit in which he served and the dates of his tour of duty in Vietnam. These records showed that the Veteran served in the 73d Signal Battalion and in the 146th Signal Company, which had been assigned to the 73d Signal Battalion, between January 1972 and September 1972 in Vietnam. The base camp at Cam Ranh Bay where the Veteran's unit was stationed was attacked in January 1972, March 1972, and April 1972. Based on this verified stressor, service connection for PTSD was granted in the August 2002 rating decision. As the Veteran's in-service stressor was verified solely through information already of record at the time of the original May 1986 rating decision, the Board finds that the Veteran's unit history records were available to VA during the Veteran's original claim. See id. The Board also notes that PTSD had been established at the time of the original claim, as this diagnosis is reflected in a January 1986 VA treatment record. See 38 C.F.R. § 3.156(c)(4). Accordingly, the grant of service connection for PTSD is effective January 8, 1986, the date VA received the Veteran's original claim. See id. § 3.156(c)(3). The Board finds that an effective date earlier than January 8, 1986 is not warranted as a matter of law. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110. 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or date entitlement arose, whichever is later. Id. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2010). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claims 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 from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2010). The Veteran has argued that a September 1973 in-service psychiatric evaluation constituted an informal claim for service connection. Under 38 C.F.R. § 3.157 (2010), a report of examination or hospitalization by VA or the uniformed services may be accepted as an informal claim for benefits only once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. Here, the Veteran's September 1973 psychiatric examination was not preceded by an adjudication of the type cited in § 3.157(b). Moreover, a claim for service connection for PTSD was not received within one year from the date of this examination. See id. § 3.157(b)(1). As such, the September 1973 in-service psychiatric evaluation does not serve as an informal claim for service connection. See Crawford v. Brown, 5 Vet. App. 33 (1993). In this respect, the Board notes that the mere presence of medical evidence in the record does not establish intent on the part of the Veteran to seek service connection for the benefit in question. See Brannon v. West, 12 Vet. App. 32, 34-5 (1998). As neither a formal nor informal claim had been received by VA prior to January 8, 1986, several years after the Veteran separated from active service, the grant of service connection for PTSD cannot be effective prior to that date. See 38 C.F.R. §§ 3.151(a), 3.155(a), 3.400(b)(2). Accordingly, the Board finds that the evidence is at least in equipoise with respect to whether an earlier effective date is warranted. Consequently, the benefit-of-the-doubt rule applies, and entitlement to an effective date of January 8, 1986, but no earlier, for the grant of service connection for PTSD is granted. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. ORDER Entitlement to an effective date of January 8, 1986 for the award of service connection for PTSD is granted, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs