Citation Nr: 1306151 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-11 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date earlier than August 8, 2003, for service connection for an anxiety disorder. REPRESENTATION Appellant represented by: B. Cook, Attorney at Law ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active military service from June 1989 to July 1991. This appeal arises to the Board of Veterans' Appeals (Board) from May 2008 and later-issued rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In a May 2008 rating decision, the RO granted service connection for an anxiety disorder and assigned an initial 30 percent rating effective August 8, 2003. The Veteran appealed for a higher initial rating and for an earlier effective date for service connection and the initial rating. In February 2010, the RO assigned a 70 percent schedular rating effective August 8, 2003. In May 2010, the Veteran withdrew any remaining appeal for a higher initial rating, stating that a dispute concerning the rating no longer exists, and that only issue remaining is the effective date issue. The Veteran has not requested a hearing on this issue. The claims files reflect that the RO has issued other rating decisions to which the Veteran has submitted notices of disagreement (hereinafter: NODs). The Board will explain why these other issues are no longer on appeal. In pertinent part of a September 2003 rating decision, the RO denied service connection for "social phobia" and continued the denial of service connection for post-traumatic stress disorder (PTSD), based on no new and material evidence. The Veteran submitted a timely NOD; however, the NOD addressed only PTSD, not social phobia. The RO issued a statement of the case (hereinafter: SOC), and the Veteran perfected an appeal for service connection for PTSD. The Veteran testified before a Veteran's law judge concerning service connection for PTSD in May 2007 and in February 2008, the Board found new and material evidence had been received, reopened the PTSD claim, and remanded it for development. The Veteran's law judge who heard the PTSD case is no longer employed at the Board. In March 2010, the Veteran's attorney waived his right to another hearing on the matter and in May 2010, the Veteran's attorney withdrew any remaining appeal for service connection for PTSD. Thus, service connection for PTSD need not be addressed in this decision. In September 2009, the RO issued a new rating decision that determined that new and material evidence had not been submitted to reopen a claim for service connection for PTSD. The Veteran appealed that decision, but, as noted above, any remaining appeal for service connection for PTSD has since been withdrawn. FINDINGS OF FACT 1. The RO received a claim for service connection for PTSD on January 5, 1996. 2. In a December 1997 decision, the RO denied service connection for PTSD. 3. At the time of the denial of service connection for PTSD, the RO had sufficient information available to identify and locate service department records that are relevant to the claim. 4. In a February 2008 decision, the Board reopened the service connection claim based, in part, on newly received service department records. 5. The RO later granted service connection for an anxiety disorder, based, in part, on the newly received service department records. CONCLUSION OF LAW The criteria for an earlier effective date of January 5, 1996, for the grant of service connection for an anxiety disorder are met. 38 U.S.C.A. §§ 5103A, 5107 (West 2002); §§ 5101, 5103, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105, 3.156, 3.157, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As set forth at 38 U.S.C.A. §§ 5100, 5103A, 5107, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefits sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. Earlier Effective Date The RO received the Veteran's original service connection claim for various disorders, including PTSD and depression, on January 5, 1996. Thereafter, VA examined the Veteran. Three May 1996 VA examination reports mention PTSD and/or depression symptoms, but the RO requested another examination. After obtaining service treatment reports from the National Personnel Records Center, the RO learned that the Veteran had failed to report for examination. The RO denied service connection for PTSD in December 1997. The Veteran did not appeal that decision and it became final. The Veteran requested that the claim be reopened in July 2001. That application was denied in April 2002. Again, the Veteran did not appeal. In August 2003, the Veteran again requested that the claim be reopened. In September 2003, the RO reopened the claim based on recent medical evidence of PTSD, but denied the claim on the merits. The Veteran appealed that decision to the Board. In June 2004, the Veteran submitted his service department's unit records for the period that he was deployed to Southwest Asia. These records tend to corroborate his claimed stressors. In February 2008, the Board adjudicated the case. The Board stated, "At the time of the 1997 VARO action, there was an absence of verified stressors, as well as a definitive diagnosis of PTSD. Since then, the evidence submitted has included extensive evidence with regard to (1) the Veteran's in-service stressors; and, (2) diagnoses of several acquired psychiatric problems, including PTSD." See Board decision, p. 7. The Board concluded that the information contained in the service department's unit history documented the Veteran's status as a combat veteran and the Board found that this evidence is new and material. The Board reopened the service connection claim and remanded it to the RO for further development. In May 2008, the RO considered a recent VA compensation examination report and then granted service connection for an "anxiety disorder (claimed as post traumatic stress disorder)" and assigned an effective date of August 8, 2003, the date on which the RO received an application to reopen the prior claim. The determination of the effective date of an award is generally governed by 38 U.S.C. § 5110(a), which states that, "[u]nless specifically provided otherwise ..., the effective date of an award based on an original claim [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 therefor." 38 U.S.C.A. § 5110. The effective date will be the day following separation from service if the claim is received within 1 year after separation. 38 C.F.R. § 3.400(b), (2) (2012). If based on receipt of new and material evidence, other than service department records, received after the final disallowance, the effective date will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q), (r) (2012). As noted above, in a final December 1997 rating decision, the RO denied service connection for PTSD. Under "usual" circumstances, the December 1997 decision would remain final and binding, i.e, it is not subject to revision unless it is shown to be based on clear and unmistakable error (hereinafter: CUE). 38 C.F.R. § 3.105 (a); see also 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.400(k); Best v Brown, 10 Vet. App. 322 (1997). The Veteran has not asserted that the December 1997 RO decision is based on CUE. While CUE is not shown, the Veteran's attorney has correctly argued that this case presents other circumstances that require VA to "reconsider" the December 1997 rating decision. Under § 3.156(c)(1), "if VA receives or 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." As part of the regulation, the Secretary has included a non-exhaustive list of records that could constitute official service department records. Id. However, the applicability of this regulation is tempered by subsection (2), which provides that § 3.156(c) "does not apply to 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 did not "provide sufficient information for VA to identify and obtain the records." 38 C.F.R. § 3.156(c)(2). "An award made based all or in part on the records identified by paragraph (c)(1) ... is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c)(3). Concerning whether a claimant had provided sufficient information to identify or locate a pertinent service department record, the Court had more to say. In Mayhue v. Shinseki, 24 Vet. App. 273, 280-82 (2011), the Court recognized that § 3.156(c)(2) cannot be used to deny an earlier effective date in a newly acquired service department records case where the information ultimately used to verify a purported stressor was available to VA at the time the claim was previously denied. The Court observed that it was VA's failure to use the information that it always had available, and not any inaction on the part of the Veteran, that prevented VA from corroborating a stressor at an earlier date. Id; also see Shipley v. Shinseki, 24 Vet. App. 458, 463-65 (2011). In this case, VA had, at the time it initially denied the PTSD claim in December 1997, the Veteran's dates of service, including specific dates of service in the Persian Gulf War, his unit assignment with B Troop, First of the 4th Cavalry, First Infantry Division, evidence that he worked as a cavalry scout, his military occupational specialty code 19D10, and evidence that he earned the Southwest Asia Service Medal with two bronze service stars-later upgraded to three bronze service stars and a Kuwait Liberation Medal. In March 1996, the Veteran supplied a detailed list of stressors that he felt caused his anxiety/PTSD. The RO denied the claim in December 1997 because the Veteran failed to appear for psychiatric re-examination. While it is true that the Veteran failed to report for a fourth VA examination, it is also true that the Board later determined that reopening the service connection claim was based partly on receipt of service department records submitted after the December 1997 rating decision. Later, the RO granted service connection based on all the evidence, including the newly acquired service department records. Thus, the fact that the Veteran failed to report for an examination in 1997 appears to be irrelevant where later obtained service department records relevant to the case at hand are received and the claim is later granted, based, in part, on those newly received service department records. Based on the foregoing, § 3.156(c) is the regulation relevant to this decision concerning the effective date for service-connected anxiety disorder, claimed as PTSD. Under these circumstances, the prior December 1997 rating decision must be reconsidered. As noted above, according to 38 C.F.R. § 3.156(c) (2). "An award made based all or in part on the records identified by paragraph (c) (1) ... is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c)(3). Because the Veteran submitted the previously-decided claim for service connection on January 5, 1996, that date becomes the effective date for service connection for his anxiety disorder. ORDER An earlier effective date of January 5, 1996, for service connection for an anxiety disorder is granted. ______________________________________________ G. A. Wasik Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs