Citation Nr: 1306185 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 10-18 168A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date earlier than April 1, 2009, for the grant of service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from February 2001 to May 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which reopened and then granted a claim for service connection for PTSD with an evaluation of 50 percent, effective April 1, 2009. The Veteran appealed therefrom as to the initial assigned effective date of service connection. FINDINGS OF FACT 1. The RO denied the Veteran's original September 7, 2005 claim for service connection for PTSD pursuant to a September 2006 rating decision, from which he did not appeal. 2. Following the Veteran's April 2009 petition to reopen, the RO granted the claim, in part upon receipt of the complete records from the Veteran's official service personnel file. CONCLUSION OF LAW The criteria are met to establish an earlier effective date of September 7, 2005 for the grant of service connection for PTSD. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans' Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duty to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will seek to provide on the claimant's behalf. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) ("Pelegrini II"). A regulatory amendment effective for claims pending as of or filed after May 30, 2008 removed the requirement that VA specifically request the claimant to provide any evidence in his or her possession that pertains to the claim. 73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1). As indicated below, the Board is granting the benefit sought on appeal of entitlement to an earlier effective date for service connection for PTSD retroactive to September 7, 2005 (the date of filing of the original claim for service connection). This is consistent with the earlier effective date requested pursuant to the Veteran's November 2009 Notice of Disagreement (NOD), and indeed the earliest assignable effective date under law given the date of filing of the Veteran's original claim back in 2005. In summary, this award constitutes a full grant of benefits sought in this case. Hence, even assuming, without deciding, that any error was committed as to implementation of the VCAA's duty to notify and assist provisions, such error was harmless in its application to adjudication of this matter, and need not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). See also Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007). The guidelines for the determination of an effective date of an award of disability compensation are set forth at 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of compensation benefits that is based on an original claim, claim reopened after a final disallowance, or claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The specific provision for the assignment of an effective date for an award of compensation benefits following the grant of an original claim for service connection, is that the effective date will be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service, and otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2)(i). Where, however, there has been an award of service-connected compensation benefits following the presentation of new and material evidence that warrants the reopening of a previous final disallowance, the appropriate effective date is that of the date of receipt of the new claim (i.e., the petition to reopen that was ultimately granted), or date entitlement arose, whichever is later. See 38 C.F.R. §§ 3.400(q)(1)(ii), (r). There is an exception to this general rule governing reopened claims. In the limited instance in which the new and material evidence received comprises a supplemental report from the service department, in accordance with 38 C.F.R. § 3.156(c), the former decision (representing the denial of that claim) may be reconsidered de novo on the merits. See too, Shipley v. Shinseki, 24 Vet. App. 458 (2011). According to 38 C.F.R. § 3.156(c), where at any time after VA issues a decision on an original claim, VA receives relevant service records that existed and had not been associated with the claims file when it first decided the claim, VA will reconsider the claim on its merits. Such records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. See 38 C.F.R. § 3.156(c)(1). This provision does not apply to records that VA could not have obtained when deciding the claim because they did not exist when VA decided it, or because the claimant failed to provide sufficient information for VA to identify and obtain them for an official source. 38 C.F.R. § 3.156(c)(2). An award made based all, or in part, on the newly received service department records 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 general provisions of 38 C.F.R. § 3.156(a) (concerning petitions to reopen based on new and material evidence) applicable to a previously decided claim. 38 C.F.R. § 3.156(c)(3). Also, where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156(c)(4). The specific regulatory criteria for establishing service connection for PTSD are: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). 38 C.F.R. § 3.304(f) (2012). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy," as established by recognized military combat citations or other official records. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Cohen v. Brown, 10 Vet. App. 128 (1997). If VA determines the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required provided that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Under the former version of applicable law, if the veteran's stressor was unrelated to participation in combat, then his lay testimony, in and of itself, was categorically insufficient to establish the occurrence of the alleged stressor. Instead, the record must have contained credible supporting information from an independent source that corroborated his testimony or statements, such as service records, or even competent lay testimony from a third-party. See Cohen, 10 Vet. App. at 146-47. See also Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996). Apart from the above provisions, however, there is a recent regulatory change to the pertinent criteria. Effective July 13, 2010, VA revised the regulation governing adjudication of claims for service connection for PTSD. See 75 Fed. Reg. 39,843 (later codified at 38 C.F.R. § 3.304(f)). The new regulation essentially removes the requirement that there be objective corroboration of a claimed in-service stressor under certain circumstances. Under the new standard, if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Having duly reviewed the circumstances of this case, the Board finds that the assignment of an earlier effective date of September 7, 2005 for service connection for PTSD is warranted. This represents the date of the Veteran's original claim, before the RO denied that claim in a September 2006 rating decision, and eventually reopened and granted the claim in September 2009. Essentially, there were service records that were available to the RO upon initial adjudication of the Veteran's claim in September 2006, but not actually obtained, which would have likely substantiated the claim. Thus, notwithstanding the finalized September 2006 decision, under 38 C.F.R. § 3.156(c) the original claim may be reconsidered de novo (on the merits), and the Veteran may recover benefits retroactively from the initial September 7, 2005 date of claim. The Board observes, to begin with, that the claim for service connection for PTSD was denied at first by incomplete evidence of record. The Veteran filed his original claim for service connection for PTSD on September 7, 2005. The RO prior to issuance of its September 2006 rating decision requested the Veteran's service personnel file to assist with the task of independently corroborating his claimed in-service stressors, but only a portion of the personnel file was obtained. Whereas there is one service records envelope dated from October 2005 with personnel records enclosed, there were also three more such envelopes containing additional personnel records later obtained in August 2009 (in connection with the Veteran's petition to reopen his claim). Consequently, the complete service personnel file obviously was not acquired when the RO first adjudicated the Veteran's claim. Meanwhile, there was already some key evidence otherwise supportive of the Veteran's claim in 2006. The July 2006 VA Compensation and Pension examination report diagnosed PTSD and linked this condition to the Veteran's claimed stressors associated with his deployment to Iraq. What remained to be shown was objective verification of an in-service stressor, as direct participation service in combat was not alleged or established. See 38 C.F.R. § 3.304(f). On the subject of stressor verification, the Veteran had received the Army Commendation Medal (ARCOM), in part for the following achievement: "During Operation Iraqi Freedom, [the Veteran] came under enemy contact while moving to the next objective. His expertise and driving ability enabled to him to maneuver and avoid mortar and small arms fire to protect his assistant driver and himself." The Veteran himself had provided the record of receipt of the ARCOM. This would appear to have established a stressor from service -- however, upon independent assessment of the Veteran's documentation, the RO expressed doubt as to its validity (ostensibly there were discrepancies in the award dates and signatures on the five underlying documents). Moreover, unfortunately, the claims file at that time lacked any independent documentation of the ARCOM award. Nor did the RO otherwise find a basis in the evidence to independently verify any other claimed in-service stressor. Hence, the Veteran's claim was denied for lack of a confirmed stressor to support a clinical diagnosis of PTSD. Following the RO's issuance of the September 2006 denial of service connection for PTSD, the Veteran did not file a timely Notice of Disagreement of this decision, and hence it became final and binding on the merits. See U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.200, 20.201. Thereafter, in April 2009 the Veteran filed a petition to reopen his previously denied claim. In August 2009, as part of the development of his petition to reopen, the comprehensive official personnel file from service was acquired. That month, an RO memorandum to the file reflects the finding, in pertinent part, that: "The Veteran's Army Commendation Medal signed by his Brigade Commander serves as sufficient evidence to concede that it is at least as likely as not that the Veteran experienced stressful events in combat conditions in Iraq." Indeed, the newly received personnel records from August 2009 contained original documentation of the ARCOM award. Based on this finding, along with confirmation of other claimed in-service events, the RO concluded that there were verified stressors of record. Service connection for PTSD was granted, effective April 1, 2009, the approximate date of receipt of the Veteran's petition to reopen. In light of these circumstances, the Board presently finds grounds to award an earlier effective date of service connection of September 7, 2005 (the initial date of claim). Once the complete personnel file was obtained, the RO ascertained sufficient indication of an in-service stressor underlying the receipt of the ARCOM. Presumably, the RO accepted this occurrence as fact because of the indisputable evidence from the personnel file (and not merely constituting a revised judgment on the part of a new VA adjudicator), whereas the previous existing evidence had been provided from the Veteran himself and the RO for whatever reason could not then authenticate it. The dispositive service records were certainly available back in 2006. Thus, the Veteran's claim must be reconsidered on the merits upon their receipt. See 38 C.F.R. § 3.156(c). Moreover, as these particular service records would have likely warranted a grant of the Veteran's claim back in September 2006, the Board has the province to award an earlier effective date retroactive to the date of claim precipitating that original decision. Hence, the earlier effective date of September 7, 2005 for service connection for PTSD is warranted. ORDER An earlier effective date of September 7, 2005 for the award of service connection for PTSD is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs