Citation Nr: 1237286 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 08-04 117 ) DATE ) ) On appeal from the Department of Veterans (VA) Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an effective date prior to February 24, 2003 for service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hepatitis C, including as secondary to PTSD. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Cleveland, Ohio. The case came to the Board from the RO in Houston, Texas. The Veteran testified at a hearing before a decision review officer (DRO) in October 2007. The Veteran requested a hearing before a Veterans Law Judge, but he failed to appear for his hearing. Therefore, his request is deemed withdrawn. As a result, no hearing was held in this matter. 38 C.F.R. § 20.704(e). The issue of entitlement to service connection for hepatitis C 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. FINDING OF FACT The Veteran filed his claim for service connection for PTSD on February 24, 2003. This is more than 1 year after separation and there is no earlier claim seeking service connection filed. CONCLUSION OF LAW The criteria for an effective date earlier than February 24, 2003 for service connection for PTSD were not met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2011); 38 C.F.R. § 3.400 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in March 2004 that explained how VA could help him obtain evidence in support of his claims. The Veteran's claim for an earlier effective date for his PTSD is a downstream issue from his claim for entitlement to service connection for PTSD. The RO granted service connection for PTSD effective February 24, 2003. The Veteran then filed a notice of disagreement arguing that he should have received an earlier effective date for this award. In these types of circumstances, VA is not required to issue a new VCAA letter. See VAOPGCPREC 8-2003. In this precedential opinion, the General Counsel held that although VA is required to issue a statement of the case (SOC) if the downstream issue is not resolved, 38 U.S.C.A. § 5103(a) does not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. In this case, the Veteran was sent an SOC that addressed this issue in February 2008. In addition to its duties to provide the aforementioned notices to claimants, VA also must make reasonable efforts to assist them with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, some service personnel records, VA treatment records, private treatment records, and reports of VA examinations. There is no indication that additional evidence exists which would impact the Veteran's claim. Additionally, the Veteran's claim is decided as a matter of law so the VCAA does not affect this case. Smith v. Gober, 114 Vet. App. 227, 231-232 (2000). Effective Date The assignment of an effective date for an award of service connection is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). However, if the claim is filed within one year of the Veteran's discharge or release from active service, the effective date shall be the day following the date of such discharge or release. 38 U.S.C.A. § 5110(b). The implementing regulation, 38 C.F.R § 3.400, states that the effective date for an award of compensation based on an original claim for service connection will be "the date of the receipt of the claim or the date entitlement arose, whichever is later." However, if the claim is received within 1 year after separation from service, the effective date will be the day following separation from active service. Id. In this case, the Veteran separated from active duty on September 21, 1971. He filed an original claim for service connection for PTSD that was received by VA on February 24, 2003. There is no prior correspondence that could constitute an informal claim. He had filed other earlier claims for VA benefits, with no indication of a claim for psychiatric pathology. The Veteran contends that service connection for PTSD should be granted effective the date of his discharge from service because he had PTSD since that time. The question of whether the Veteran had PTSD since 1971 is irrelevant to establishing an effective date for service connection. The Veteran's claim was not filed until 2003, more than one year after his discharge. Therefore, there is no basis for service connection to be effective the day after discharge. There is no basis for an effective date prior than February 24, 2003 for service connection for PTSD. Moreover, the Board is without jurisdiction to award an earlier effective date than is permitted by statute. Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board is bound by the laws passed and the regulations promulgated by the Department. 38 U.S.C.A. § 7104. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, an earlier effective date for service connection for PTSD is denied. ORDER An effective date earlier than February 24, 2003 for PTSD is denied. REMAND The Veteran contends that he contracted hepatitis C as a result of a blood transfusion in service. There is no record of such, and no indication that the Veteran sustained any injuries in service that were serious enough to require a blood transfusion. VA examiners in July 2005 and in April 2012 determined that the most likely cause of the Veteran's hepatitis C was his intravenous drug use and his use of intranasal cocaine. In a report dated in February 2003, a private psychologist opined that the Veteran's use of alcohol and drugs was due to PTSD. In May 2004 the Veteran's Vet Center counselor also indicated that the Veteran's substance abuse was due to PTSD. On the other hand, there are indications of some treatment for hepatitis dating from the 1970's, prior to a demonstration of PTSD. Additionally, a history of hepatitis is noted at the time of entry into service. It is unclear whether any of these findings are in any way related to the reported hepatitis C that is now present. While service connection for substance abuse cannot be granted on a direct basis, service connection is available when substance abuse is a feature of a service connected disability such as PTSD. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). If the Veteran's use of intravenous narcotics and intranasal cocaine was the result of his PTSD, then service connection for hepatitis C could be available on a secondary basis. Therefore, a remand is necessary to determine whether he has chronic hepatitis, if so whether it existed prior to service, or if not, whether it is related to the findings in the 1970's after service. Further, there should be an indication of whether the Veteran's abuse of illegal narcotics was due to PTSD. Accordingly, the case is REMANDED for the following actions: 1. An appropriate health care professional should review the claims file and make a determination that there exists evidence that the appellant has findings of chronic hepatitis C or other hepatitis being present. If so, a determination should be made if there is any relationship between the hepatitis noted in the 1970's, and reported to have existed in High School and any current findings. If so, the relationship and the medical basis should be set forth, and etiology of any current hepatitis determined. Finally, it should be indicated whether the current hepatitis is most likely related to drug use/abuse, and if so, is it a symptom of self treatment of PTSD or is it more likely due to willful misconduct. An examination of the Veteran is not necessary unless the examiner determines that he or she needs to examine the Veteran in order to provide the requested opinion. The examiner should provide a complete rationale for his or her conclusion, including a discussion of the temporal proximity or lack thereof of the onset of psychiatric symptoms to the Veteran's substance abuse. 2. After completion of the above development, the Veteran's claim should be re-adjudicated. If the determination remains unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. 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). 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. 2011). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs