Citation Nr: 1306124 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 09-09 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than January 17, 2006, for a grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from May 1968 to May 1970, including in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the Veteran's claim for an effective date earlier than January 17, 2006, for a grant of service connection for PTSD. The Veteran disagreed with this decision in January 2007. He perfected a timely appeal in March 2009. A Travel Board hearing was held at the RO in October 2012 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. FINDINGS OF FACT 1. The evidence of record indicates that the Veteran's original claim of service connection for PTSD was filed on August 15, 2005, and entered in to VETSNET on that date. 2. In a letter dated on August 23, 2005, and mailed to the Veteran by the RO, he was informed that VA had received his claim for benefits. 3. In statements on a VA Form 21-4138 dated on January 17, 2006, and date-stamped as received by the RO that same day, the Veteran requested that his PTSD claim which had been filed on August 15, 2005, be reopened and advised VA that he had not heard anything about this claim except that it had been closed on August 31, 2005. 4. In a rating decision dated on April 12, 2006, and issued to the Veteran on April 28, 2006, the RO granted the Veteran's claim of service connection for PTSD, assigning a 50 percent rating effective January 17, 2006. 5. In statements on a VA Form 21-4138 dated on August 21, 2006, and date-stamped as received by the RO on August 31, 2006, the Veteran requested an earlier effective date of August 2005 for the grant of service connection for PTSD. 6. Service connection is in effect for PTSD, evaluated as 50 percent disabling effective January 17, 2006. 7. The evidence of record shows that the Veteran has prosecuted his claim of service connection for PTSD continuously since August 15, 2005. CONCLUSION OF LAW The criteria for an effective date of August 15, 2005, for a grant of service connection for PTSD have been met. 38 U.S.C.A. §§ 5110, 5111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.4(b)(1), 3.31, 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. The Veteran's earlier effective date claim for PTSD is a "downstream" element of the RO's grant of service connection for this disability in an April 2006 rating decision. For such downstream issues, notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159 is not required in cases where such notice was afforded for the originating issue of service connection. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Courts have held that once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d. 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In January 2006, VA notified the Veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, 16 Vet. App. at 187. This letter also noted other types of evidence the Veteran could submit in support of his claim. The Veteran further was informed of when and where to send the evidence. After consideration of the contents of this letter, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Additional notice of the five elements of a service-connection claim was provided in September 2006, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As will be explained below in greater detail, the evidence supports assigning an earlier effective date of August 15, 2005, for a grant of service connection for PTSD. Thus, any failure by the RO to provide notice as to the disability rating under the VCAA cannot be considered prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). With respect to the timing of the notice, the Board points out that the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, notice as to what is required to substantiate the Veteran's earlier effective date claim was issued in September 2006 prior to the currently appealed rating decision issued in August 2007. Because the Veteran was fully informed of the evidence needed to substantiate his claim, any failure of the RO to notify the Veteran under the VCAA cannot be considered prejudicial. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. The Veteran's Virtual VA claims file has been reviewed and no relevant records were located there. The Veteran also does not contend, and the evidence does not show, that he is in receipt of Social Security Administration (SSA) disability benefits such that a remand to obtain his SSA records is required. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claim that was lacking to substantiate the claim for benefits. The VLJ specifically noted the issue as entitlement to an effective date earlier than January 17, 2006, for a grant of service connection for PTSD. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. The representative and the VLJ then asked questions to ascertain whether the Veteran had submitted evidence in support of this claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. The representative specifically asked the Veteran about any evidence that he had filed his claim prior to the currently assigned effective date. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the element necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the element necessary to substantiate his claim for benefits. The Veteran's representative and the VLJ asked questions to draw out the evidence which demonstrated the Veteran's entitlement to an earlier effective date, the only element of the claim in question. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). There is no duty to provide an examination or a medical opinion in this case because such evidence would not be relevant to the earlier effective date claim on appeal. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Earlier Effective Date Claim The Veteran contends that he is entitled to an effective date earlier than January 17, 2006, for a grant of service connection for PTSD. He specifically contends that his original service connection claim for PTSD was received by the RO on August 15, 2005. He also specifically contends that, unbeknownst to him, RO personnel cancelled his original claim on August 30, 2005, but did not notify him of this change in the status of his claim until he inquired about it in January 2006. He further contends that, when he learned that his claim had been cancelled by the RO, he immediately submitted a request for it to be reopened and an effective date of August 15, 2005, to be assigned for any grant of service connection for PTSD. He finally contends that, but for the RO error in cancelling his original service connection claim for PTSD, he is entitled to an earlier effective date of August 15, 2005, for a grant of service connection for PTSD. Governing Law and Regulations In general, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400; see also 38 U.S.C.A. § 5110(a). For claims of entitlement to service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service, otherwise the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2012). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution. If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2012). A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157. Once a formal claim for compensation has been allowed, receipt of a report of examination by VA or evidence from a private physician will be accepted as an informal claim for benefits. In the case of examination by VA, the date of examination will be accepted as the date of receipt of a claim. The provisions of the preceding sentence apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination. In the case of evidence from a private physician, the date of receipt of such evidence by VA will be accepted as the date of the claim. Id. Analysis The Board finds that the evidence supports assigning an earlier effective date of August 15, 2005, for a grant of service connection for PTSD. The Veteran has contended that his original service connection claim for PTSD was filed at the RO on August 15, 2005, and entered in to VETSNET on the same day by RO personnel. He also has contended that he received correspondence from VA dated on August 23, 2005, which referred to his pending service connection claim for PTSD. The evidence of record clearly supports these assertions and demonstrates that the Veteran is entitled to an earlier effective date of August 15, 2005, for a grant of service connection for PTSD. In support of his earlier effective date claim, in January 2007, the Veteran submitted a copy of a letter dated on August 23, 2005, which VA had sent to him. This letter stated, in pertinent part: We have received your application for benefits. It is our sincere desire to decide your case promptly. However, as we have a great number of claims, action on yours may be delayed. We are now in the process of deciding whether additional evidence or information is needed. If we need anything else from you, we will contact you, so there is no need to contact us in the meantime. This letter was mailed to the Veteran at his correct mailing address of record, included his VA claim number, and was signed by the Veterans Service Center Manager at the RO. The Veteran also submitted a copy of a VETSNET screen printout in March 2009 in support of his earlier effective date claim. This VETSNET screen printout shows that a claim for compensation was received on August 15, 2005, and was entered in VETSNET on that date. This VETSNET screen printout also shows that the "date of final action" on the claim received on August 15, 2005, was August 31, 2005. The Board notes in this regard that VETSNET is an internal VA database allowing RO personnel to track VA claims processing. In statements on a VA Form 21-4138 dated on January 17, 2006, and date-stamped as received by the RO that same day, the Veteran requested that his PTSD claim which had been filed on August 15, 2005, be reopened. The Veteran also advised VA that he had not heard anything about this claim after he had filed it on August 15, 2005, except that it had been closed on August 31, 2005. The RO treated this correspondence as a request to reopen a service connection claim for PTSD. In a rating decision dated on April 12, 2006, and issued to the Veteran on April 28, 2006, the RO granted the Veteran's claim of service connection for PTSD, assigning a 50 percent rating effective January 17, 2006. The RO noted in the narrative for this rating decision that January 17, 2006, was the appropriate effective date for service connection for PTSD because that was the date that VA had received the Veteran's service connection claim for PTSD. In statements on a VA Form 21-4138 dated on August 21, 2006, and date-stamped as received by the RO on August 31, 2006, the Veteran requested an earlier effective date of August 2005 for the grant of service connection for PTSD. He specifically contended that he was entitled to "an earlier effective date of 8/05 for PTSD." In the currently appealed rating decision dated on December 12, 2006, and issued to the Veteran and his service representative on December 18, 2006, the RO denied the Veteran's earlier effective date claim for a grant of PTSD. The RO noted in the narrative for this rating decision that January 17, 2006, was the appropriate effective date for a grant of service connection for PTSD because that was the date that VA had received the Veteran's service connection claim for PTSD. The RO also noted that the Veteran had not been diagnosed as having PTSD until he reported for VA examination on April 3, 2006, subsequent to the date that his claim had been received. The Veteran testified at his October 2012 Travel Board hearing that he had filed his original service connection claim for PTSD on August 15, 2005. See Board hearing transcript dated October 24, 2012, at pp. 1-2. He also testified that he subsequently learned that this claim had been cancelled on August 31, 2005. Id., at pp. 2. He testified further that he had received a "generic letter" from VA after he filed his claim notifying him that it had been received. Id., at pp. 5. The Board acknowledges the Veteran's assertions and hearing testimony that he is entitled to an earlier effective date than January 17, 2006, for the grant of service connection for PTSD. The record evidence supports his assertions and demonstrates his entitlement to an earlier effective date of August 15, 2005, for a grant of service connection for PTSD. The Veteran testified credibly in support of this claim at his October 2012 Board hearing. It is clear that a claim was received from the Veteran at the RO on August 15, 2005. Although the exact nature of the claim that was filed on August 15, 2005, is not clear from a review of the VETSNET screen printout submitted by the Veteran in March 2009 in support of his earlier effective date claim, all correspondence from the Veteran dated subsequent to August 15, 2005, referred only to his service connection claim for PTSD. This persuasively suggests that the Veteran filed his original service connection claim for PTSD on August 15, 2005. It also is clear from a review of the record evidence that VA received a claim from the Veteran on August 15, 2005, because the RO promulgated the August 23, 2005, letter notifying him that his claim had been received. More importantly, this August 23, 2005, letter from VA notified the Veteran that he did not need to take any further action on his pending claim and VA would contact him only if it needed additional information or evidence in order to process this claim. The Board notes in this regard that the Court has held that "[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While Ashley dealt with the regularity of Board procedures, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied the presumption of regularity to procedures at the RO level. In this case, there is no clear evidence demonstrating that the RO either did not receive the Veteran's claim of service connection for PTSD on August 15, 2005, or that it did not issue the August 23, 2005, letter which notified him that this claim had been received and he did not need to take any further action unless VA contacted him seeking additional information or evidence to process it. Applying the presumption of regularity to the facts of this case, the Board finds that the VETSNET information indicating that a claim was filed by the Veteran on August 15, 2005, and the August 23, 2005, letter issued to the Veteran were promulgated by the RO as part of its regular claims processing work. In summary, the Board concludes that the Veteran has prosecuted a claim of service connection for PTSD continuously since he filed his original claim on August 15, 2005, the date that it was received by VA and entered in to VETSNET by RO personnel. The Board observes that the laws and regulations governing effective dates are clear. For claims of entitlement to service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service; otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2012). In this case, the date of the Veteran's claim is August 15, 2005, and the April 2006 VA examination report also indicates that the Veteran related symptoms of PTSD that existed at the time that claim was filed. See Gilpin v. West, 135 F.3d 1353, 1355-1356 (Fed. Cir. 1998) (The requirement of current symptomatology at the time of filing the application is a permissible interpretation of the statutes governing compensation benefits). Hence, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an effective date of August 15, 2005, for a grant of service connection for PTSD have been met. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). ORDER Entitlement to an effective date of August 15, 2005, for a grant of service connection for PTSD, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs