Citation Nr: 1123918	
Decision Date: 06/23/11    Archive Date: 06/29/11

DOCKET NO.  09-38 058	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to an earlier effective date prior to May 19, 2009 for the grant of nonservice-connected pension benefits.  

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD) to include an acquired psychiatric disorder.  

3.  Entitlement to service connection for a back disorder.  

4.  Entitlement to service connection for a right knee disorder.  

5.  Entitlement to service connection for a sleep disorder. 


REPRESENTATION

Appellant represented by:	John S. Berry, Attorney at Law


ATTORNEY FOR THE BOARD

J.M. Seay, Associate Counsel


INTRODUCTION

The Veteran had active service from May 1970 to April 1972.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the July 2009 and November 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  

The issues of entitlement to service connection for PTSD, service connection for a back disorder, service connection for a right knee disorder, and service connection for a sleep 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.


FINDING OF FACT

The evidence of record does not show that the Veteran filed a claim for nonservice-connected pension prior to May 19, 2009, nor does the evidence show that the Veteran was incapable of submitting a claim for pension benefits.


CONCLUSION OF LAW

The criteria for an effective date before May 19, 2009 for nonservice-connected pension benefits have not been met.  38 U.S.C.A. §§ 1502, 1503, 1521, 5110 (West 2002); 38 C.F.R. §§ 3.321(b)(2), 3.400, 4.17 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).

As to the Veteran's appeal for an earlier effective date for nonservice-connected pension benefits, that appeal was effectuated by receipt of a notice of disagreement with the RO rating decision dated in July 2009 that granted entitlement to nonservice-connected pension benefits.  At that point, the claim for nonservice-connected pension benefits was not only substantiated, it was proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve had been fulfilled.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006).  Thus, no further notice is required and the Board finds no evidence of prejudicial error in proceeding with final appellate consideration of the Veteran's claim for an earlier effective date for nonservice-connected pension benefits at this time.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  

As to the duty to assist, all relevant records required for adjudication of the claim for an earlier effective date for non-service connected pension benefits have been sought and associated with the claims file.  See 38 C.F.R. § 3.400(b)(1).  A VA examination and opinion would be of no assistance in adjudicating this matter, because from the treatment records in the claims file there is no plausible indication that the Veteran was so incapacitated for a period of 30 days or more that it prevented him from filing a disability pension claim.  See 38 U.S.C.A. § 5103A(d); C.F.R. § 3.400(b)(1).

LAW AND ANALYSIS

Earlier Effective Date

Disability pension will be paid to each Veteran of a period of war who meets statutorily-defined service, net worth, and annual income requirements; and who is permanently and totally disabled from nonservice-connected disability not the result of willful misconduct.  38 U.S.C.A. §§ 1502, 1503, 1521.  All Veterans who are basically eligible and who are unable to secure and follow a substantially gainful occupation by reason of disabilities which are likely to be permanent shall be rated as permanently and totally disabled.  38 C.F.R. § 4.17.  Where the evidence of record establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards set forth at 38 C.F.R. § 4.16 but is found to be unemployable by reason of his disabilities, age, occupational background and other related factors, a permanent and total disability rating for pension purposes may be authorized.  38 C.F.R. § 3.321(b)(2).

Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened 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 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.

In the case of claims for disability pension received on or after October 1, 1984, pension may be effective the date the claim is received, or the date the Veteran became permanently and totally disabled, whichever is the advantage of the Veteran.  The earlier of those two dates may be assigned if the Veteran files a pension claim within a year after he became permanently and totally disabled, and he establishes that he had disability that was so incapacitating that it prevented him from filing a pension claim for at least 30 days after he became permanently and totally disabled.  38 U.S.C.A. § 5110(b)(3); 38 C.F.R. § 3.400(b)(ii)(B).  While rating board judgment must be applied to the facts and circumstances of each case, extensive hospitalization will generally qualify as sufficiently incapacitating to have prevented filing the claim.  38 C.F.R. § 3.400(b)(1)(ii)(B).

A "claim" is defined broadly to include 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 intent to apply for VA benefits from a claimant or representative may be considered an informal claim.  An informal claim must identify the benefit sought.  38 C.F.R. § 3.155(a).  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

In a May 19, 2009 VA treatment record, the Veteran expressed his desire to file a claim for nonservice-connected pension benefits and noted that he was discussing the issue with his representative.  

In a formal claim received by VA on June 4, 2009, the Veteran requested entitlement to nonservice-connected pension benefits.  

In the July 2009 rating decision at issue, the RO granted the Veteran's claim for nonservice-connected pension benefits, and assigned an effective date of May 19, 2009, the date of the VA treatment record indicating that the Veteran intended to apply for nonservice-connected pension benefits.

Here, the law and regulation essentially state that the effective date for a claim for pension will be the date of claim or date entitlement arose, but cannot be earlier than the date of the claim.  See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  Thus, even if entitlement arose prior to the date of claim, the later date is May 19, 2009 which is the date of claim for entitlement to pension benefits, which was based upon the VA treatment record documenting the Veteran's request for pension benefits.  The Veteran has not alleged that he was incapable of submitting a claim for pension under the provisions of 38 U.S.C.A. § 5110(b)(3) and 38 C.F.R. § 3.400(b)(1)(ii)(B).

Regulations define the date of receipt of a claim by VA as the date on which the claim was received at VA. 38 C.F.R. § 3.1(r) (2010).  Claims for VA benefits may be initiated as informal claims, and a claim may be initiated in a communication from a claimant's authorized representative.  38 C.F.R. § 3.155 (2010).  In this case, however, no formal or informal claim was communicated to VA prior to May 19, 2009.  

Therefore, the preponderance of the evidence is against an effective date earlier than May 19, 2009 for the grant of nonservice-connected pension benefits.  Thus, the benefit of the doubt doctrine is not applicable and the claim is denied.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).


ORDER

Entitlement to an earlier effective date prior to May 19, 2009 for the grant of nonservice-connected pension is denied.  


REMAND

Reasons for Remand:  To obtain Social Security Administration records and provide VA examinations.  

The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim, and requires the VA to assist a claimant in obtaining that evidence.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010).  Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim.  38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010).

Preliminarily, the January 2010 VA treatment record shows that the Veteran's application for Social Security Disability Insurance (SSDI) had been approved, and he would begin receiving disbursements of the award.  While there is no statement as to the medical conditions underlying that decision, the decision to award benefits, as well as the supporting medical records may have direct relevance to the adjudication of the claims now before VA.  Consequently, these records must be obtained and associated with the claims file.  See Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (VA's duty to assist included obtaining SSA records where relevant to the VA claim on appeal).  See also Woods v. Gober, 14 Vet. App. 214 (2000).

The Veteran contends that his currently diagnosed PTSD is related to his period of active service.  In a March 2009 statement, the Veteran stated that he felt his PTSD was related to a fight that occurred during service during which he was stabbed.  In addition, the Veteran stated that he witnessed the bombing of a building which killed everything inside the buildings.  He stated that this still upsets him to this day.  In a statement in support of his claim for service connection for PTSD, the Veteran again explained that his PTSD could be related to a fight that occurred during active service.  The VA treatment records include numerous diagnoses of PTSD; however, the VA physicians did not relate the Veteran's PTSD to an in-service stressor.  The record shows that the Veteran was afforded a VA psychiatric examination in April 2009 to determine the nature and etiology of his PTSD.  If the VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such examination is an adequate one.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The April 2009 VA examiner explained that the Veteran was seen for an examination for PTSD due to a wound possibly made by a knife during service.  The examiner stated that the A criteria were not met in that there was no actual threatened death or serious threat to the physical integrity of self.  Second, the Veteran had no reporting of the B criteria that would be consistent for PTSD.  The examiner diagnosed the Veteran with PTSD and depression due to an auto accident post military and what would appear to be a workers compensation injury.  However, the VA examiner did not address the Veteran's reports of witnessing the bombing of buildings during his service in Vietnam.  As the medical evidence of record does not address this reported stressor, the Board finds that the Veteran should be afforded a new VA examination and opinion.  See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a Veteran for a medical examination where it deems an examination necessary to make a determination on the Veteran's claim); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary).

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should obtain the records pertinent to the Veteran's claim for SSDI, including medical records relied upon concerning the claim, and associate them with the claims file.  All efforts to obtain these records should be fully documented and a negative response provided if these records are not available.

2.  The Veteran should be afforded a VA examination to ascertain the nature, extent and etiology of the Veteran's PTSD.  All indicated studies should be performed, to include psychological testing if appropriate, and all findings should be reported in detail.  The Veteran's claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner.  The examination report is to reflect that such a review of the claims file was made.  In reviewing the Veteran's claims file, the examiner should address the Veteran's claimed stressors including his statement regarding witnessing bombs hitting buildings during his service in Vietnam.  The examiner should express an opinion as to whether it is at least as likely as not (at least a 50 percent likelihood or higher) that the Veteran has PTSD as a result of any of the stressful events.  

(The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.)

A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board.  Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2010), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review.

3.  When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence.  If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.


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).





	(CONTINUED ON NEXT PAGE)


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).




______________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs