Citation Nr: 1304972 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 08-33 901 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an effective date earlier than February 7, 2006 for an award of service connection for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL The Appellant and his spouse ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to August 1966. This case originally came before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which granted entitlement to service connection for posttraumatic stress disorder, and assigned a 50 percent rating. In a September 2009 rating decision prepared by a Decision Review Officer, a 70 percent evaluation for posttraumatic stress disorder was assigned effective May 20, 2009. In a decision of January 2012, the Board denied entitlement to an effective date earlier than February 7, 2006 for an award of service connection for posttraumatic stress disorder. That decision was subsequently appealed to the United States Court of Appeals for Veterans Claims (Court) which, in a July 2012 Order, vacated the Board's January 2012 decision, and, in so doing, remanded the case to the Board for action consistent with a July 2012 Joint Motion. The case is now, once more, before the Board for appellate review. FINDINGS OF FACT 1. In an unappealed April 1967 rating decision, VA denied entitlement to service connection for a nervous condition. 2. In an unappealed November 1967 rating decision, VA denied entitlement to service connection for conversion reaction with anxiety. 3. In an unappealed January 1968 rating decision, VA denied entitlement to service connection for a psychiatric condition. 4. On October 1, 1982, there was received a "reopened" claim for service connection for a "nervous condition," which was, apparently, never addressed by the RO, but which was denied by implication when the Veteran failed to prosecute his claim. 5. The Veteran's initial claim of entitlement to service connection for posttraumatic stress disorder was received on December 20, 2004. 6. The Veteran's entitlement to service connection for posttraumatic stress disorder arose no earlier than March 7, 2007, the date of a VA psychiatric examination which established a nexus between posttraumatic stress disorder and his service in the Republic of Vietnam, and ultimately led to the assignment of an effective date of February 7, 2006, i.e., prior to March 7, 2007, for the award of service connection for posttraumatic stress disorder. CONCLUSION OF LAW Entitlement to an effective date prior to February 7, 2006 for an award of service connection for posttraumatic stress disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5110, 7105 (West 2002); 38 C.F.R. § 3.400 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Concerning the Veteran's claim of entitlement to an earlier effective date, inasmuch as service connection, an initial rating, and an initial effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim. Currently, there is no evidence that additional records have yet to be requested, or that a VA examination is in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, the Board has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, and those of his spouse, offered during the course of an RO hearing in May 2009, as well as both VA and private treatment records and examination reports, and other pertinent documents. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Earlier Effective Date As regards the issue of entitlement to an effective date earlier than February 7, 2006 for an award of service connection for posttraumatic stress disorder, the Board notes that service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. The effective date of an award of service connection based on an original claim, a claimed reopened after final disallowance, or a claim for increase is the date of receipt of claim, or the date entitlement arose, whichever is later. The effective date of an evaluation and award of compensation is generally the day following separation from service, or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In the case at hand, in an April 1967 rating decision, VA denied entitlement to service connection for a nervous condition. The Veteran failed to appeal that denial of benefits, with the result that the April 1967 rating decision is final. 38 U.S.C.A. § 7105 (West 2002). In a subsequent rating decision of November 1967, VA denied entitlement to service connection for a conversion reaction with anxiety. Once again, the Veteran failed to appeal that denial of benefits. Accordingly, that determination is also final. Id. In a January 1968 rating decision, VA again denied entitlement to service connection for a psychiatric condition. The Veteran also failed to appeal that determination, with the result that the January 1968 rating decision is final. Id. On October 1, 1982, there was received what could reasonably be construed as a "reopened" claim for service connection for a nervous condition. Based on a review of the Veteran's claims folder, it would appear that no action on that claim was taken by the RO. The Veteran was next heard from in the context of his claim for service connection for posttraumatic stress disorder, which was received in December 2004. In a rating decision of January 2006, VA denied entitlement to service connection for posttraumatic stress disorder. Received on January 30 or February 7, 2006 were VA outpatient treatment records covering the period from December 2004 to December 2005, a number of which make reference to posttraumatic stress disorder. It is these records, it is alleged, that the Board failed to consider in the context of the Veteran's claim for an earlier effective date. However, the records in question show only continuing treatment for the Veteran's various psychiatric disabilities. They do not demonstrate a nexus between the Veteran's alleged posttraumatic stress disorder and any incident or incidents of service. More specifically, during the course of VA outpatient treatment in January 2005, it was noted that the Veteran was "going through compensation and pension" for four disabilities, one of which was posttraumatic stress disorder. Further noted was that the Veteran had been seeing a psychologist and a "readjustment counseling service" for his posttraumatic stress disorder and depression. Shortly thereafter, in early April 2005, it was noted that the Veteran was working with a counselor at the local Vet Center regarding his application for service connection for posttraumatic stress disorder. Significantly, while at that time, the Veteran gave a history of "Vietnam service in 1965-66 in the Navy SEALS," a review of his record, including personnel records, shows no evidence whatsoever of the Veteran's service as a Navy SEAL. Moreover, while approximately two months later, there was noted a clinical impression of a "mildly compensated man" with posttraumatic stress disorder, that record failed to establish any relationship between the Veteran's psychiatric problems and his period of active military service. Accordingly, in a rating decision of July 2006, the RO once again denied entitlement to service connection for posttraumatic stress disorder. The Veteran was then seen for a VA psychiatric examination in March 2007. That examination involved a full review of the Veteran's claims folder and medical records. The Veteran was diagnosed with chronic, moderately severe posttraumatic stress disorder; major depression without psychotic features; and a generalized anxiety disorder. The examiner opined that, while it did appear that the Veteran had a documented nervous condition within a year of his discharge from service, it was not entirely clear whether the symptoms of that disorder were consistent with posttraumatic stress disorder, which, at the time, was not a documented condition. However, it did appear that the Veteran might very well have had such symptoms, and that his symptoms of anxiety, depression, and posttraumatic stress disorder had been present since his return from Vietnam. In a March 2007 rating decision, based in large part on the report of the aforementioned VA psychiatric examination, VA granted service connection for posttraumatic stress disorder, effective from February 7, 2006, the apparent date of receipt of the aforementioned VA outpatient treatment records. The Veteran has argued that his award of service connection for posttraumatic stress disorder should have been made effective from October 1, 1982, the date of his "reopened" claim for service connection for a nervous condition, or, in the alternative, December 2004, the date of receipt of his claim for service connection for posttraumatic stress disorder. A review of the record, however, would appear to indicate that, while following the filing of the Veteran's claim on October 1, 1982, VA failed to address the merits of that claim, the Veteran also failed to prosecute and/or pursue his claim. Indeed, after October 1, 1982, the Veteran was not again heard from until December 2004, a period of more than 22 years. Under the circumstances, it must be assumed that the Veteran was aware that his October 1982 claim was, by implication, denied. In December 2004, the Veteran filed an initial claim of entitlement to service connection for posttraumatic stress disorder. However, entitlement to service connection for that disability did not arise until the time of the aforementioned VA psychiatric examination in March 2007, the examination which, for the first time, established a nexus between the Veteran's posttraumatic stress disorder and his Vietnam service. As noted above, the effective date of an award of compensation based on a claim reopened after final disallowance, as in this case, is the date of receipt of a claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Notwithstanding the finding that the Board failed to adequately address whether, at the time of the October 1982 statement, any action was taken by the RO from which the Veteran could deduce that his claim had been adjudicated and denied, entitlement to service connection for posttraumatic stress disorder arose no earlier than March 2007, the date of the aforementioned VA psychiatric examination which linked posttraumatic stress disorder to service. Significantly, inasmuch as the governing effective date is date of receipt of claim (October 1, 1982 or December 2004) or the date entitlement arose (March 2007), whichever is later, the later of those two dates (March 2007) must be taken as the effective date governing the Veteran's award of service connection. Put somewhat more simply, even assuming that the Veteran's October 1, 1982 claim remained open, entitlement did not arise prior to the March 2007 VA psychiatric examination which established a nexus between the Veteran's posttraumatic stress disorder and his period of active military service. The fact that the Boston RO chose to assign an effective date of February 7, 2006 for the award of service connection for posttraumatic stress disorder, apparently based on the receipt of VA outpatient treatment records on that date, does nothing to alter the fact that, under any set of circumstances, entitlement to service connection did not arise prior to March 2007. Moreover, it is well to note that, as of the March 2007 rating decision, there was no evidence independently corroborating the claimed inservice stressor. The March 2007 examination's notation that the appellant claimed that he was a Navy SEAL who engaged in reconnaissance is an assertion that the undersigned finds had no evidentiary support in the record available at the time of the March 2007 rating decision. Again, a review of the appellant's personnel record does not include an assignment to any basic underwater demolition/SEAL training class, let alone assignment to an operational SEAL team in the Republic of Vietnam. At best, the Veteran's "entitlement" to an award of service connection for posttraumatic stress disorder "arose" no earlier than March 2007, the date of the VA psychiatric examination establishing a nexus between his posttraumatic stress disorder and his service in the waters off the coast of the Republic of Vietnam. In conjunction with the current appeal, the Veteran's attorney, in December 2012, submitted a lengthy clinical evaluation, reportedly conducted by a former VA psychologist. That evaluation is to the effect that the Veteran currently suffers from posttraumatic stress disorder, as well as various other psychiatric disorders, and that his posttraumatic stress disorder "more likely than not" had its origin prior to 1967, when the Veteran served in Vietnam. However, that psychological report was received no earlier than December 28, 2012, and, as private medical evidence, could not establish entitlement to benefits prior to that date. See 38 C.F.R. § 3.157. The Board has taken into consideration the Veteran's statements, and those of his spouse, offered during the course of an RO hearing in May 2009. Those statements, however, in and of themselves, do not provide a persuasive basis for a grant of the benefit sought in light of the evidence as a whole. Based on a review of the entire evidence of record, entitlement to an effective date earlier than February 7, 2006 for the award of service connection for posttraumatic stress disorder is not warranted. In reaching this decision, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date prior to February 7, 2006 for the award of service connection for posttraumatic stress disorder is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs