Citation Nr: 1237007 Decision Date: 10/25/12 Archive Date: 11/08/12 DOCKET NO. 10-19 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder or other acquired psychiatric disorder. 2. Entitlement to an initial rating higher than 10 percent for a right wrist laceration scar. 3. Entitlement to an effective date earlier than August 16, 2005, for service connection for the right wrist. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from July 1969 to July 1970. This appeal arises to the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, that granted service connection for a laceration scar of the right wrist and assigned a 10 percent rating effective August 16, 2005. The Veteran appealed for a higher initial rating and an earlier effective date for service connection for residuals of the right wrist laceration, including the scar. This appeal also arises from a February 2009 RO rating decision that denied service connection for post-traumatic stress disorder (PTSD). In a November 2009 rating decision that denied service connection for right carpal tunnel syndrome with numbness and weakness of the right hand, the RO also continued the denial of a higher initial rating for the service-connected right wrist laceration and scar; however, the RO re-characterized the service-connected wrist laceration disability to include "pain in the right arm" as a service-connected disability. In October 2010, the RO granted service connection for right carpal tunnel syndrome and assigned an initial 10 percent rating effective August 16, 2005. Although the Veteran did not submit a notice of disagreement to that decision, because she seeks a higher initial rating for the right wrist and arm, and because the wrist symptoms are inextricably intertwined with service-connected carpal tunnel impairments, the right carpal tunnel syndrome rating must be considered in conjunction therewith. The RO issued two statements of the case (SOCS) in April 2010. Since then, the RO received new evidence. During a hearing before the undersigned Veterans Law Judge in December 2011, the Veteran waived her right to initial RO consideration of this new evidence. Therefore, a remand will not be necessary for this procedural safeguard. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Service connection for PTSD and entitlement to an initial rating higher than 10 percent for a right wrist laceration scar are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In a final rating decision issued in February 1972, the RO denied service connection for the right arm because there was no record of the claimed injury during active service, nor at the time of separation. 2. The Veteran did not appeal the February 1972 rating decision, nor has she alleged clear and unmistakable error (CUE) in that decision. 3. The Veteran submitted a new claim for VA compensation on August 16, 2005. 4. Prior to August 16, 2005, service-connection was not in effect for any disability, nor had a formal claim for compensation been disallowed for the reasons that a service-connected disability was not compensable in degree. CONCLUSION OF LAW The criteria for an effective date earlier than August 16, 2005, for service connection for the right wrist, are not met. 38 U.S.C.A. §§ 5103A, 5107 (West 2002); 38 U.S.C.A. §§ 5103, 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156, 3.157, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and her representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In October 2008, the RO provided adequate notice in a letter sent to the Veteran. While the notice letter was issued in response to a recently received post-traumatic stress disorder claim, the notice letter contains general provisions that inform the Veteran and her representative of the provisions for assigning the effective date for any service-connected disability. The claimant challenges the effective date assigned for service connection for her right wrist disability. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court of Appeals for Veterans Claims (Court) held that in cases where service connection has been granted and an effective date has 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. Id. at 490-91. Because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained, to the extent possible, all pertinent VA and private clinical records identified. The National Personnel Records Center (hereinafter: NPRC) has determined, in November 1971, November 2005, and in December 2009, that all available service department records had been sent. The claimant was offered VA medical examinations. The claimant was provided an opportunity to set forth her contentions during a hearing before the undersigned Veterans Law Judge. Neither the claimant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Earlier Effective Date The effective date of service connection will be the later of the date of receipt of claim or the date entitlement arose if the claim is received more than one year after the Veteran's discharge from service. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2011); 38 C.F.R. § 3.400 (2012). If based on receipt of new and material evidence, other than service department records, received after the final disallowance, the effective date will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (q) (2012). For reopened claims, the effective date will be the date of receipt of the new claim or the date entitlement arose, whichever is later, except as provided in § 20.1304 (b) (1) of this chapter. 38 C.F.R. § 3.400 (r) (2012). § 20.1304 (b) (1) addresses the treatment of new evidence submitted after certification of the appeal to the Board where good cause for the untimely submission has not been shown. The Veteran separated from active service in July 1970 and filed her first claim for service connection for the right arm in November 1970. She completed and signed a VA Form 21-526, Application for Compensation or Pension. In November 1970, the RO requested the Veteran's Service Treatment Reports (STRs) from the NPRC via a VA Form 07-3101, Request for Information. In November 1971, the RO again requested the Veteran's STRs via a VA Form 07-3101, Request for Information. The RO noted on that form that the only records received in response to the November 1970 request were dental records, a June 11, 1970-dated report of examination at discharge, a report of medical history questionnaire, and a blank SF 514 and 519 [these are clinical record and lab report forms]. The NPRC responded that no further clinical records or STRs were forthcoming. In a February 1972 RO rating decision, the RO denied service connection for residuals of an injury to the right arm, based on no record of treatment for the claimed condition during active service or at the time of separation. The Veteran was notified of that decision and of her appeal rights in a February 1972 letter. She did not appeal. Thus, that decision became final. No revision to the prior final decision may be made absent CUE or a finding of non-finality. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.400(k); Best v Brown, 10 Vet. App. 322 (1997) (RO decision rendered non-final for insufficient notice); See also Link v. West, 12 Vet. App. 39, 44 (1998) (holding that CUE claim does not exist, as matter of law, where there is no prior final RO decision). Therefore, evidence received since the February 1972 RO decision is the only evidence that may be considered in this claim. On August 16, 2005, the RO received the Veteran's renewed request for service connection for residuals of a right wrist injury. The RO accepted her request as an application to reopen the claim. With respect to the sufficiency of this claim, the law provides that 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 informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2012). The RO granted service connection for the right wrist in September 2008, based on new and material evidence: namely, recent VA and private medical evidence and two lay witness statements submitted in 2006. The RO assigned an effective date for service connection of August 16, 2005, based on the date of receipt of the application to reopen the claim. In December 2011, the Veteran testified before the undersigned Veterans Law Judge that an earlier effective date for service connection for the right wrist is warranted based on her 1970 claim-a claim that the RO denied because the Army lost her STRs (transcript, p 3). She posited that had these pertinent STRs been located, her claim could have been granted earlier. She also testified that she is uncertain whether any pertinent record was ever found (transcript, p 5). Under 38 C.F.R. § 3.156(c)(1), "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." As part of the regulation, the Secretary has included a non-exhaustive list of records that could constitute official service department records. Id. However, the applicability of this regulation is tempered by subsection (2), which provides that § 3.156(c) "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 did not "provide sufficient information for VA to identify and obtain the records." 38 C.F.R. § 3.156(c)(2). "An award made based all or in part on the records identified by paragraph (c) (1) ... is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c) (3). In Mayhue v. Shinseki, 24 Vet. App. 273, 280-82 (2011), the Court recognized that § 3.156(c)(2) cannot be used to deny an earlier effective date in a newly acquired service records case where the information ultimately used to verify a purported stressor was available to VA at the time the claim was previously denied. The Court observed that it was VA's failure to use the information that it always had, and not any inaction on the part of the veteran, that prevented the RO from corroborating the claimed event at an earlier date. Id. As noted above, at the time of the February 1972 denial of service connection, the RO had very few STRs on which to base its decision. When the claim was later granted, the RO had not obtained any additional STR or other service department record. In fact, the crucial clinical records of right arm treatment from Fort Ord, upon which the Veteran had hoped would substantiate her claim, were never located. In 2006, the Veteran did submit new and persuasive lay witness and photographic evidence corroborating the in-service right wrist laceration. That evidence, coupled with the fact that she had promptly filed her original claim very soon after leaving active service, formed the RO's basis for granting the claim. Therefore, it is clear that the claim was granted based on the submission of new and material evidence after a final disallowance of the claim. Contrary to the Veteran's belief, the claim was not granted based on receipt of freshly-located or previously-lost STRs or other service department records. As set forth above, where a claim is granted based on receipt of new and material evidence, other than service department records, received after the final disallowance, the effective date will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (q) and (r). In this case, there is no evidence that an entitling regulation or other material fact that could delay entitlement, was not in place at the time of receipt of the new claim. Therefore, the later date, August 16, 2005, the date of receipt of the new claim, controls the effective date. According to 38 C.F.R. § 3.157, an examination report or hospital report may be used as a claim for an increase or a claim to reopen [emphasis added] under certain circumstances. Because the grant of service connection followed a claim to reopen, these special provisions for finding an earlier claim will be discussed. Under 38 C.F.R. § 3.157 (a), the effective date of pension or compensation will be the date of receipt of a claim or the date entitlement arose, whichever is later. This subsection adds that hospitalization or examination reports will be accepted as an informal claim where certain other requirements are also met. Subparagraph (a) states that the report will be accepted as an informal claim if the report "relates to a disability which may establish entitlement." The Board concludes from this provision that in the case of a pension claim, the report must simply relate to any disability, as any disability could help establish entitlement to pension. In the case of a compensation claim, such as is presented here, the report must relate to a service-connected disability, as only service-connected disabilities may establish or help establish, entitlement to compensation benefits. Thus, all clinical reports must be reviewed carefully for evidence of an informal claim for benefits, that is, they must be reviewed in order to determine if they relate to a disability which may establish entitlement. Brannon v. West, 12 Vet. App. 32, 35 (1998) (The Board must review all communications in the record that may be interpreted as a formal or informal claim for benefits and consider whether such communications, in the context of the entire record, reasonably raise a claim for benefits). Review of the record reveals no communication or report of examination or hospitalization, dated earlier than August 16, 2005, that could suffice as informal claim to reopen the case. 38 C.F.R. § 3.157 (b) presents another basis for a grant of an earlier effective date for compensation benefits; however, the provisions of this subsection are limited to already-service-connected disabilities. § 3.157 (b) provides, in pertinent part: Once a formal claim for ... compensation has been allowed ... receipt of one of the following will be accepted as an informal claim for increased benefits.... (1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination ... will be accepted as the date of *132 receipt of a claim.... The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established.... Massie v. Shinseki, 25 Vet. App. 123, 131-32 (2011). In this case, because service connection had not been established for any disability prior to August 16, 2005, the provisions of 38 C.F.R. § 3.157 (b) cannot apply. In summation, no evidence has been received that could that change the effective date already assigned. After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The claim for an effective date earlier than August 16, 2005, for service connection for the right wrist must be denied. ORDER An effective date earlier than August 16, 2005, for service connection for the right wrist is denied. REMAND Service Connection for PTSD or Other Acquired Psychiatric Disorder VA's duty to assist includes obtaining up-to-date VA treatment reports and developing the claim for disability due military sexual trauma by offering the Veteran an appropriate examination to determine the nature and etiology of any acquired psychiatric disorder. See 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(b); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The medical records obtained reflect that PTSD, military sexual trauma, and depressive disorder have been treated by White City VA Medical Center health professionals. Klamath Falls CBOC records have also been obtained. During a hearing before the undersigned Veterans Law Judge, the Veteran testified that she received a diagnosis of PTSD based on personal assault in the military from a Dr. L. G, of the Vet Center in Grants Pass, Oregon (transcript, p 8). According to the hearing transcript, a Veteran's service officer volunteered to obtain those records; however, it does not appear that the records have been submitted. Initial Ratings for the Right Arm, Wrist, Hand, Fingers, and Scar as Residuals of a Laceration The Veteran seeks an initial rating greater than 10 percent for residuals of a right wrist laceration with scar. She asserts that the right arm, right wrist, and right hand are painful. The RO has rated two separate disabilities. The first is characterized as a right wrist scar, laceration residuals, and pain in the right arm, and was rated 10 percent disabling effective August 16, 2005, under Diagnostic Code 5215-7804. The RO has rated right carpal tunnel syndrome involving the median nerve, 10 percent disabling under Diagnostic Code 8599-8515 effective August 16, 2005. Although the right arm, hand, and wrist have been evaluated by VA, it remains unclear as to whether to attribute pain, numbness, and weakness of the right hand and fingers, painful motion and weakness of the right wrist, and pain of the right forearm and upper arm to carpal tunnel syndrome, or to median nerve damage due to a service-connected laceration, or to a residual laceration scar. Such information would be helpful prior to adjudication. While the median nerve could be evaluated under either disability, if shown to be related thereto, it cannot be evaluated separately under both disabilities because such action is prohibited as pyramiding. VA's duty to assist includes offering an examination to determine the nature and etiology of each symptom reported. Moreover, to ensure that the Veteran has been accorded sufficient due process, the AMC should issue a supplemental statement of the case (SSOC) that discusses the rating criteria for carpal tunnel syndrome, including median nerve injury, as set forth at 38 C.F.R. § 4.124a, Diagnostic Code 8515. An April 2010-issued SOC furnished the rating criteria for scars and for limitation of motion of the wrist, but did not address the rating criteria for the median nerve. The October 2010 rating decision that granted service connection for "carpal tunnel syndrome involving the median nerve" also failed to furnish the rating criteria for the median nerve. No SOC or SSOC has been issued since April 2010. There is indication that the median nerve symptoms may be related to both the laceration and to carpal tunnel syndrome. Accordingly, the case is REMANDED for the following action: 1. Obtain up-to-date treatment reports from the Grants Pass, Oregon, Vet Center, White City VA Medical Center, the Klamath Falls CBOC, and any other location that the Veteran has received relevant treatment for PTSD or other psychiatric impairment. If the Veteran identifies the source of any other relevant evidence, VA must assist in obtaining that evidence. 2. After the development requested above has been completed to the extent possible, the AMC should make arrangements for an appropriate examination by a psychiatrist. The claims file should be made available to the psychiatrist for review and the psychiatrist is asked to note that review in the report. The psychiatrist should examine the Veteran, elicit a history of relevant symptoms, and offer a diagnosis, if forthcoming. For any diagnosis offered, the psychiatrist should address whether it is at least as likely as not (50 percent or greater possibility) that the diagnosis is related to active military service. The physician should offer a rationale for any conclusion in a legible report. If a relationship between active military service and any psychiatric disease is unlikely, then the psychiatrist should address whether it is at least as likely as not that the psychiatric disease was caused by a service-connected disability. The physician should offer a rationale for any conclusion in a legible report. If a relationship between active military service and any psychiatric disease is unlikely, and it is also unlikely that the psychiatric disease was caused by a service-connected disability, then the psychiatrist should address whether it is at least as likely as not that the psychiatric disease was aggravated by a service-connected disability. The physician should offer a rationale for any conclusion in a legible report. 3. Concurrent with the above, the AMC should make arrangements for an appropriate examination to determine the nature and etiology of all claimed right arm, wrist, hand, and finger symptoms. The claims file should be made available to the physician for review and the physician is asked to note that review in the report. The physician should examine the Veteran, elicit a history of relevant symptoms, and offer any diagnosis forthcoming. The physician is asked to ascertain the existence and etiology of: (1) any pain, numbness, and weakness of the right hand; (2) any pain, numbness, and weakness of the right fingers; (3) any painful motion and weakness of the right wrist; (4) any pain of the right forearm; and, (5) any pain of the right upper arm, as it remains unclear as to whether carpal tunnel syndrome, median nerve damage due to a service-connected laceration, or residuals of a laceration scar are responsible for these symptoms. The physician should offer a rationale for any conclusion in a legible report. 4. The AMC should issue an SSOC that provides the rating criteria for carpal tunnel syndrome, including median nerve damage. See 38 C.F.R. §§ 4.123, 4.124, 4.124a, Diagnostic Code 8515 (2012). 5. After the above development, the AMC should review the claims. If all desired benefits are not granted, an appropriate SSOC should be furnished to the Veteran and her representative. They should be afforded an opportunity to respond before the claims folder is returned to the Board. No action is required of the Veteran until notified. The purpose of this remand is to procure clarifying data and to ensure due process of law. The Veteran 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). Failure to report for a scheduled VA examination, without good cause, may have adverse consequences on her claims. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs