Citation Nr: 1304580 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 05-38 464 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts THE ISSUE Entitlement to an effective date earlier than September 24, 2003, for an award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. M. Powell, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to June 1970. The case initially came before the Board of Veterans Appeals (Board) on appeal from rating decisions issued by the RO in October 2005 and October 2007. In an October 2005 rating decision, in pertinent part, the RO granted service connection for PTSD, effective on September 24, 2003. The Veteran subsequently perfected an appeal with the effective date assigned. In an August 2009 decision, the Board denied the claim for an earlier effective date for the grant of service connection for PTSD. A timely appeal of that decision was filed by the Veteran to the United States Court of Appeals for Veterans Claims (Court). In March 2010, the Court issued an Order that granted a Joint Motion, vacating the portion of the August 2009 decision that denied an earlier effective date for the grant of service connection for PTSD and remanding this matter back to the Board for additional consideration. The Veteran had provided testimony at a hearing via videoconference with by the undersigned Veterans Law Judge in May 2009. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. On November 12, 1997, the RO received the Veteran's original claim of service connection for posttraumatic stress disorder (PTSD). 2. A December 31, 1997 VA examination report showed a diagnosis of PTSD. 3. In an unappealed April 1998 rating decision, the RO denied the Veteran's claim of service connection for PTSD because there was no clear PTSD diagnosis and the Veteran's 201 file did not contain evidence of participation in a stressful situation. 4. On September 24, 2003, the RO received the Veteran's petition to reopen his claim of service connection for PTSD. 5. In February 2005, the Veteran submitted existing and relevant service department records verifying his service as a military intelligence officer. CONCLUSION OF LAW The requirements for an effective date of December 31, 1997 but no earlier, for the award of service connection for PTSD, based on reconsideration of an April 1998 rating decision have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.105, 3.156, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). But "[i]n cases where service connection has been granted and an initial disability rating and effective date have 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." Dingess/Hartman, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007) (noting that once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, section 5103(a) notice is no longer required). Additionally, where service connection has been granted, the claimant bears the burden of demonstrating prejudice from defective notice with respect to downstream elements such as effective dates or disability ratings. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran has made no such assertions here. Accordingly, regarding the claim for an earlier effective date, VA's duty to notify has either has been satisfied. VA's duty to assist the Veteran has also been satisfied. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran's service personnel records and VA treatment records have been obtained. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. II. Analysis The Veteran argues that a date earlier than September 24, 2003, assigned for the grant of service connection for PTSD, is warranted. The Veteran submitted an original claim for service connection for PTSD on November 12, 1997. In an April 1998 decision, the RO, in finding that a clear diagnosis of PTSD was not of record and that the Veteran's DD Form 214 and military service 201 file were negative for any individual decorations that would be considered evidence of participation in a stressful situation, denied the claim. The Veteran was notified of this decision in April 1998, but did not timely appeal the matter. As such, it became final. 38 U.S.C.A. § 7105(c)(West 2002 & Supp. 2012); 38 C.F.R. §§ 20.302, 20.1103 (2012). On September 24, 2003, the Veteran sought to reopen his claim of service connection for PTSD. In support of his claim, the Veteran submitted VA clinical records showing a diagnosis of, and treatment for, PTSD. On February 24, 2005, the RO received additional service personal records submitted by the Veteran showing that he served as an intelligence officer while in the Republic of Vietnam, to support his assertions of witnessing Vietcong get tortured and killed and being involved in fire fights. The RO granted service connection for PTSD in October 2005, assigning a 50 percent disability evaluation, effective on September 24, 2003. In reaching this decision, the RO noted that a February 2004 VA examination confirmed a diagnosis of PTSD based on the stressors the Veteran reported during his service in the Republic of Vietnam as a military intelligence officer. The RO also noted that the Veteran's military personnel records documented service in the Republic of Vietnam as a military intelligence officer from July 1968 to July 1969 and duty as a member of a field team from July 1968 to December 1969. The effective date for an award of service connection based on a claim reopened due to the submission of new and material evidence, other than service department records and not received within one year of the prior decision, is the of receipt of the new claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q), (r). If, however, at 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 but were not associated with the claims file when VA first decided the claim, VA will reconsider, rather than reopen, the claim. 38 C.F.R. § 3.156(c). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) are met. 38 C.F.R. § 3.156(c). Such records do not include any 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 failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). Here, the Board finds that the additional service personnel records (including letters of appreciation for his work as a military intelligence officer) submitted by the Veteran were relevant to the claim of service connection for PTSD that was previously denied because they tended to verify the Veteran's reported stressors, an element of significance in determining entitlement to service connection for PTSD. Because the additional service department records existed, but were not associated with the Veteran's claims file at the time of the last final denial of the claim, the April 1998 rating decision denial of service connection for PTSD must now be deemed to have been reconsidered. 38 C.F.R. § 3.156(c)(1) (2012). Pursuant to 38 C.F.R. § 3.156(c)(3), an award made based all or in part on the records identified by 38 C.F.R. § 3.156(c)(1) is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of 38 C.F.R. § 3.156 applicable to the previously decided claim and the date that entitlement arose. In this case, the applicable date of claim is November 12, 1997, the date the Veteran filed his original claim of service connection for PTSD. The date of entitlement is the date that all the requirements of entitlement to service connection for PTSD were met. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a) (2012). The record shows that the Veteran underwent a VA examination on December 31, 1997. At that time, the Veteran, in detail, described his Vietnam-related stressors. With regard to an Axis I diagnosis, the examiner, indicated that there seemed to be some evidence of posttraumatic stress disorder and that it was unclear how active the illness was at that time. The Board construes such statements by the examiner as a valid PTSD diagnosis based on the Veteran's reported Vietnam-related stressors. There is no other evidence showing a valid PTSD diagnosis prior to this date. Thus, the date of entitlement is December 31, 1997. Accordingly, the appropriate effective date for the grant of service connection for PTSD is December 31, 1997, the later of the date of the original claim and the date of entitlement. ORDER An effective date for a grant of service connection for PTSD of December 31,1997 but no earlier, is granted, subject to the regulations governing the payment of monetary benefits. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs