Citation Nr: 1304342 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-36 024 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for acquired neuropsychiatric disorder, anxiety disorder not otherwise specified (NOS) with features of atypical panic symptoms and posttraumatic stress disorder (PTSD) and depressive disorder NOS. 2. Entitlement to an effective date earlier than November 13, 2003 for service connection for acquired neuropsychiatric disorder, anxiety disorder NOS with features of atypical panic symptoms and PTSD and depressive disorder NOS. . REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in Houston, Texas. Additionally, the Veteran appears to be claiming service connection for cirrhosis of the liver, erosive gastritis, hypertension, a disorder characterized by abdominal pain, and a liver disorder other than cirrhosis. The Veteran should be requested to clarify whether she is in fact seeking service connection for these conditions and, if so, appropriate development and initial adjudication should be conducted. The issue of entitlement to an initial rating in excess of 70 percent for PTSD 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. FINDINGS OF FACT 1. The claim for service connection for a psychiatric disorder was received on December 8, 1994. 2. Additional service department records consisting of the Veteran's 201 file were received after the claim was first denied in September 1995. 3. The award of service connection in the April 2007 RO decision was based in part on the contents of the Veteran's 201 file. CONCLUSION OF LAW The criteria for an effective date of December 8, 1994 for service connection for a psychiatric disability are met. 38 U.S.C.A. §§ 5107, 5110, 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.114(a), 3.156 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to her claim. Given the favorable action taken herein below, the Board finds that no further assistance in developing the facts pertinent to the Veteran's claim for an earlier effective date is required at this time. 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 or a claim reopened after final adjudication, "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 a granted 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 or a claim reopened after final disallowance 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. However, notwithstanding this, if at any time after VA issues a decision on a claim, VA receives and 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. 38 C.F.R. § 3.156(c). An award made based all or in part on the existence of these service records is effective the date that entitlement arose, or the date that VA received the previously denied claim, whichever was later. 38 C.F.R. § 3.156(c)(4). In this case, the Veteran's original claim for service connection for depression and personality disorder was made on December 8, 1994. Her claim was denied in a September 1995 rating decision. Evidence considered at that time consisted of service treatment records and a VA examination report in April 1995 that diagnosed dysthymic disorder but did not address the etiology of the Veteran's symptoms. Service treatment records show that the Veteran had been diagnosed with dysthymic disorder at times in service, although she was discharged with a diagnosis of personality disorder and alcohol abuse. Service connection for a psychiatric disorder was again denied in rating decisions dated in June 1999 and October 2002. Beginning in September 1998, the Veteran claimed that her psychiatric disorder was due to sexual harassment in service. On November 28, 2005 additional service department records were obtained by VA, specifically the Veteran's 201 file. A VA examination dated in April 2007 determined that the evidence in the Veteran's 201 file and her service medical records corroborated her allegations of sexual harassment and perhaps sexual assault in service, which worsened a psychiatric disorder that had existed prior to service. Service connection for the Veteran's psychiatric disorder, then labeled acquired neuropsychiatric disorder, anxiety disorder NOS with features of atypical panic symptoms and PTSD and depressive disorder NOS, was granted based upon this opinion. Thus, the grant was made in part due to the association of the 201 file with the Veteran's claims folder in November 2005. Although the prior examination in April 1995 diagnosed dysthymic disorder rather than anxiety disorder NOS with features of atypical panic symptoms and PTSD and depressive disorder NOS, it appears that the current diagnosis represents a progression of the Veteran's symptoms of anxiety and depression which existed at the time of the April 1995 examination. Since the grant of service connection in April 2007 was premised in part on the contends of the 201 file which was received in November 2005, and was not of record at the time of the original denial, the appropriate effective date is the date of the Veteran's original service connection claim on December 8, 1994, which is also the date entitlement arose as there was no claim for VA benefits prior to that date. ORDER An effective date of December 8, 1994 for service connection for acquired neuropsychiatric disorder, anxiety disorder NOS with features of atypical panic symptoms and PTSD and depressive disorder NOS is granted. REMAND The Veteran contends that she is entitled to an initial rating in excess of 70 percent for her psychiatric disorder. Her last psychiatric examination took place in April 2007. Insofar as the Veteran's submissions are quite disjointed and difficult to interpret, it is unclear whether she is claiming that her condition worsened since this evaluation. In any event, the Board finds that this evaluation, which is more than four years old, does not provide a basis to assess the Veteran's current functioning or the time period now encompassing the grant of an earlier effective date. Accordingly, the Veteran should be afforded a new VA examination to determine the current severity of her psychiatric disorder. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination to determine the severity of her psychiatric disorder(s) since the grant of service connection (if possible). All symptoms and functional effects of her psychiatric disability should be set forth in detail in the report of examination. 2. After completion of the above development, the Veteran's claim should be re-adjudicated. If the determination remains less than fully favorable to the Veteran, she and her representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Thereafter, if necessary, the case should be returned to the Board for 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. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs