Citation Nr: 1312503 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 09-17 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date earlier than June 2, 2006 for a grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from November 1970 to December 1972. This matter comes to the Board of Veterans' Appeals (Board) following an appeal of an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. In September 2012, the Veteran testified before an RO Decision Review Officer during a videoconference hearing. A transcript of that hearing is of record. Additionally, in November 2012, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is also of record. Finally, the Board notes that in a May 2009 VA Form 9, the Veteran appears to raise the issue of entitlement to compensation under the provisions of 38 U.S.C.A. § 1151. In a July 2012 notice letter concerning the Veteran's claim on appeal for an earlier effective date, the RO requested that the Veteran clarify if in fact he wished to file a claim for compensation under 38 U.S.C.A. § 1151. A review of the claims file does not reflect that the Veteran has responded to the RO's request for clarification of this matter. FINDINGS OF FACT 1. The Veteran's original claim for service connection for a "nervous condition" was received by the RO on October 16, 1981 and denied by rating action in May 1983. 2. In February 2000, the Board denied the Veteran's claim for service connection for PTSD. 3. The RO received the Veteran's written request to reopen the claim for service connection for a psychiatric disorder, to include PTSD, on June 2, 2006. 4. In an August 2008 rating decision, service connection for PTSD secondary to an in-service personal assault was granted based, in part, on new and material service department records that had existed and had not been associated with the claims file when VA first decided the claim in May 1983. CONCLUSION OF LAW The criteria for entitlement to an effective date of October 16, 1981 for the grant of service connection for PTSD have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(c) (2005); 38 C.F.R. § 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), codified at 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record shows that in January 2007, February 2007, and July 2007 VCAA notice letters, the Veteran was informed of the information and evidence necessary to reopen and substantiate the underlying claim of service connection for PTSD, the original benefit sought on appeal. The Veteran was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). In addition, the Veteran was provided notice as to how VA determines disability ratings and effective dates. In the present case, the Veteran's claim on appeal arises from his disagreement with the effective date assigned following the grant of service connection for PTSD. Once service connection is granted and the claim is substantiated, additional notice is not required. See Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nonetheless, the RO further advised the Veteran of the information and evidence necessary to substantiate his earlier effective date claim in a July 2012 notice letter. Otherwise, the record in this case includes service treatment records, post-service VA and private medical records, reports of VA examination, and transcripts from the Veteran's videoconference hearings with the RO and with the Board. The Veteran and his representative have also provided argument with respect to the Veteran's claim on appeal. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. II. Analysis By way of history, service connection for a nervous condition was originally denied in a May 1983 rating decision. Subsequent RO and Board decisions continued to deny the Veteran's claim, finding a lack of nexus between any diagnosed post-service psychiatric disorder, to include PTSD, and the Veteran's period of service. In particular, in February 2000, the Board determined that new and material evidence had been submitted to reopen the Veteran's claim for service connection for PTSD, but denied the underlying claim on the merits. In its decision, the Board's analysis included a finding that there was no corroborating evidence that the Veteran had been assaulted during his active service period. As noted above, the Veteran subsequently advanced his service connection claim once more, filing a claim to reopen in June 2006. The RO ultimately granted service connection for PTSD by rating decision in August 2008, in part, due to receipt of official military records from the United States Army Criminal Investigation Command (USACIC). The award of service connection was made effective from June 2, 2006. The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for PTSD. Specifically, he asserts that the award should be made effective from the date of his original claim of service connection for a nervous condition in October 1981. Under 38 U.S.C.A. § 5110(a) and 38 C.F.R. § 3.400(r), the effective date of an award based on new and material evidence (other than service department records) received after the final disallowance of a claim, is the date of receipt of the new claim or the date entitlement arose, whichever is later. However, an exception to this general rule is found at 38 C.F.R. § 3.156(c). In June 2006, when the Veteran filed his claim to reopen, 38 C.F.R. § 3.156(c) provided, in pertinent part: Where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such . . . . 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) (2005). In June 2005, the Secretary proposed to amend § 3.156(c) to establish clearer rules regarding reconsideration of decisions on the basis of newly discovered service department records. In the proposed rule changes identified in the Federal Register, VA discussed the pre-amendment 38 C.F.R. § 3.156(c) and a related effective date provision, 38 C.F.R. § 3.400(q)(2). The following was noted, In practice, when VA receives service department records that were unavailable at the time of the prior decision, VA may reconsider the prior decision, and the effective date assigned will relate back to the date of the original claim, or the date entitlement arose, whichever is later. See 70 Fed. Reg. 35,388 (June 20, 2005). VA ultimately amended 38 C.F.R. § 3.156(c) by adding section (c)(1) which provides: Notwithstanding any other section in this part, 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 and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim . . . . 38 C.F.R. § 3.156(c)(1) (2012). In the proposed rule changes contained in the Federal Register, VA explained that § 3.156(c)(1) specifically applied to "unit records, such as those obtained from the Center for Research of Unit Records (CRUR) that pertain to military experiences claimed by a veteran. Such evidence may be particularly valuable in connection with claims for benefits for post traumatic stress disorder." See 70 Fed. Reg. at 35,388. Furthermore, VA limited 38 C.F.R. § 3.156(c)(1) by the creation of § 3.156(c)(2), which provides: Paragraph (c)(1) of this section 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 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) (2012) In the proposed rule, VA noted that the limitation of subsection (c)(2) allowed VA to reconsider decisions and retroactively evaluate disability in a fair manner, on the basis that a claimant should not be harmed by an administrative deficiency of the government, but limited by the extent to which the claimant had cooperated with VA's efforts to obtain relevant records. See 70 Fed. Reg. at 35,388. With respect to the above, the United States Court of Appeals for Veterans Claims (hereinafter "Court") held that the clarifying statements in the proposed rule amending 38 C.F.R. § 3.156(c) govern the interpretation of the pre-amendment 38 C.F.R. § 3.156(c). The Court clarified that the applicability of pre-amendment 38 C.F.R. § 3.156(c) does not depend on whether newly acquired service records were corrected records or had been misplaced at the time the claim was filed. See Vigil v. Peake, 22 Vet. App. 63 (2008). The Court later held that under either pre-amended or amended § 3.156(c), a claimant whose claim was reconsidered based on newly discovered service department records could be entitled to an effective date as early as the date of the original claim. See Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011). The Board notes the amendments to 38 C.F.R. § 3.156(c) were made effective October 6, 2006, subsequent to the Veteran's claim to reopen. Prior to the October 6, 2006 effective date, there was no limitation on VA's ability to reconsider previously decided claims in light of the submission of new and material service department records. See Cline v. Shinseki, 26 Vet. App. 18, 23 (2012). The Court in Cline also found that the addition of subsection (c)(2) was not intended as clarification of any past practice of VA in limiting reconsideration of claims based on a claimant's lack of cooperation. Id. at 25. The Court further determined that the amendments to 38 C.F.R. § 3.156(c) were not expressly made retroactive. Cline at 26. In the present case, the pre-amendment version of 38 C.F.R. § 3.156(c), which is not affected by any limitations on its application, is more favorable to the Veteran. As such, the Board will consider the Veteran's claim under the pre-amendment version of 38 C.F.R. § 3.156(c). The Veteran has sought service connection for a psychiatric disability since October 1981. While the disability was originally claimed as a nervous condition, the Board notes that "nervous condition" was later characterized as a psychiatric disorder as well as PTSD. Furthermore, the Veteran did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) associated with any mental disability. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). Pursuant to the holding in Clemons, the Board will consider the Veteran's original claim as encompassing a claim for any acquired psychiatric disorder, to include PTSD. With the above in mind, the Veteran was granted service connection for PTSD in August 2008 based on the receipt of service department records from the USACIC. These records documented an in-service assault that occurred in May 1971. The RO's grant was also based on an August 2008 VA examination opinion linking a diagnosis of PTSD to the assault in service. In the report of examination, the examiner notes that he reviewed the Veteran's claims file, medical records, and DD Form 214. At the same time, an explanation or rationale was not provided for the examiner's ultimate finding that the Veteran's PTSD was related to the in-service assault. See e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (An examination report must contain clear conclusions and supporting data, as well as "a reasoned medical explanation" connecting the data and conclusions.). The Board also notes that in the report of an August 2008 examination, the examiner failed to discuss the Veteran's prior psychiatric history. The Veteran had been previously diagnosed with PTSD secondary to his report of combat service in Vietnam, and not otherwise to any assault in service. The record on appeal does not reflect evidence that the Veteran ever served in Vietnam, notwithstanding his report of such to VA clinicians. The Board is also aware that the Veteran has provided conflicting information with regard to having been sexually assaulted during the course of the attack he experienced in service. Furthermore, the investigative records from the USACIC, to include witness statements to the assault, do not include any report that the Veteran was sexually assaulted. Otherwise, the Board is mindful in reviewing the claims file, that in a November 1981 VA treatment record, the Veteran was noted to claim that his aggressive impulses and behavior first started in service after having been assaulted by other soldiers. In a VA Form 9 (Appeal to Board of Veterans' Appeals) submitted by the Veteran and received by the RO in August 1985, the Veteran reported that he began to suffer from a nervous condition in the military due to the flirtatious actions of another soldier towards his wife, the deaths of family members, and an assault that took place while he was stationed at Fort Lee, Virginia. He again reported that he had been assaulted in service in a May 1989 statement to the Board, and requested that records from the Army's Criminal Investigative Division be obtained. No action was taken at that time to assist the Veteran in obtaining any records, nor following an additional request for assistance in April 1997. Not until the Veteran reopened his claim in June 2006, and again reported having been assaulted in service, was development concerning the reported assault initiated by VA. In the present case, in light of receipt of service department records from the USACIC, the Board finds that pre-amendment 38 C.F.R. § 3.156(c) is for application. Furthermore, as the USACIC records were in existence and had not been associated with the claims file at the time the Veteran filed his original claim for a nervous condition in October 1981, under the regulation, the Veteran is entitled to reconsideration of the original decision, notwithstanding any prior final RO or Board decisions. Mayhue, Cline, supra. As such, consideration must be given as to whether service connection for PTSD is warranted from the original date of claim. In its review of the claims file, the Board notes that other than the August 2008 report of VA examination, the Veteran, in a January 2007 VA treatment record, was diagnosed with PTSD secondary to the in-service assault. The record does not otherwise appear to support an earlier diagnosis of PTSD related to the Veteran's assault in service. As noted above, the Veteran had been reporting that he suffered from nightmares and flashbacks secondary to his combat service in Vietnam. As a result, PTSD was diagnosed as being secondary to reported combat stressors. Nonetheless, a diagnosis of PTSD, secondary to the in-service assault, many years following the Veteran's original claim for service connection for a nervous condition does not necessarily preclude an effective date award back to the date of that original claim. Specifically, the Court has held that under the circumstances of an original claim for service connection, the date that the Veteran submitted the claim or the date the Veteran was released from active service, whichever applies, ultimately controls the effective date for benefits. See McGrath v. Gober, 14 Vet. App. 28, 35 (2000). In McGrath, the Board had found the earliest date that a VA examiner had diagnosed PTSD as "the date entitlement arose" and used that date, rather than a much earlier date of receipt of claim, as the effective date. The Court soundly rejected that rationale. The Court stressed that in an original claim for benefits, the date the evidence is submitted or received is irrelevant when considering the effective date of an award, even (as was the case in McGrath) when it was submitted over twenty years after the time period in question. With McGrath in mind, and in light of the August 2008 VA examiner's opinion linking the Veteran's PTSD to his in-service assault, the Board finds that an effective date of October 16, 1981, the date of the original claim for service connection, is warranted for the grant of service connection for PTSD. The evidence does not otherwise show that the Veteran filed a claim seeking service connection for a psychiatric disability, to include PTSD, within one year after his separation from service in 1972, or at any time prior to October 16, 1981; therefore, an effective date prior to October 16, 1981, is not warranted. 38 C.F.R. § 3.400(b)(2)(i). With respect to the above, it would appear that VA's failure to investigate and develop the Veteran's report of being assaulted in service prevented VA from corroborating the purported stressor at an earlier date. As noted above, the Veteran did identify in 1985 of having been assaulted in service and clearly requested assistance in developing this stressor as early as 1989. At the same time, the Veteran's then psychiatric diagnoses and treatment were being medically related to his reported combat experiences in Vietnam. As noted above, the evidence does not reflect the Veteran ever served in Vietnam. As such, the Veteran's credibility is substantially undermined by such reporting. Nonetheless, the RO has accepted the August 2008 VA examiner's opinion relating PTSD to an in-service assault. In light of this fact, the provisions of pre-amendment 38 C.F.R. § 3.156(c), and consistent with the Court's holding in McGrath, an effective date of October 16, 1981 for the grant of service connection for PTSD is deemed warranted. ORDER Entitlement to an effective date of October 16, 1981 for service connection for PTSD is granted. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs