Citation Nr: 1312504 Decision Date: 04/16/13 Archive Date: 05/02/13 DOCKET NO. 09-49 394 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an effective date earlier than March 28, 2005, for the grant of service connection for post traumatic stress disorder (PTSD). 2. Whether new and material evidence has been submitted to reopen a claim for service connection for a skin condition, to include as due to Agent Orange exposure. 3. Entitlement to service connection for peripheral neuropathy, to include as due to Agent Orange exposure 4. Entitlement to service connection for a heart condition, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran had active service from October 1967 to October 1969 with service in the Republic of Vietnam from March 1968 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In an October 2008 rating decision, the RO, among other things, denied service connection for peripheral neuropathy and declined to reopen the claim for service connection for psoriasis (previously claims as skin condition due to Agent Orange). In an April 2009 rating decision, the RO denied entitlement to an earlier effective date for the grant of service connection for PTSD. In a March 2012 determination letter, the RO denied service connection for a heart condition. On his December 2009 and February 2012 Substantive Appeals, the Veteran requested a hearing before a Board member at the local RO (Travel Board). A hearing was initially scheduled in September 2012. In August 2012 correspondence, the Veteran requested to have his hearing rescheduled. The hearing was rescheduled for December 2012. In an October 2012 statement, the Veteran requested to reschedule his hearing in the middle or later part of 2013, to allow him time to recuperate from the chemotherapy he was currently undergoing. The hearing was rescheduled for March 2013. A note associated with the claims file reported that the Veteran called and reported that he was unable to travel and no longer desired a hearing. The Veteran has not requested to reschedule his hearing. Accordingly, his Board hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (2012). In a February 2012 rating decision, the RO granted service connection for erectile dysfunction and assigned a 0 percent disability rating, effective December 12, 2007. In a March 2012 notice letter, the RO informed the Veteran that his claim for an earlier effective date for erectile dysfunction was currently under appeal, but would not be addressed at that time. Although the record currently does not include a Notice of Disagreement with the effective date assigned, the issue has now been raised by the record. The Veteran also raised a claim seeking service connection for gastrointestinal cancer, to include as due to Agent Orange exposure. See August 2012 and March 2013 statements. As these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues entitlement to service connection for peripheral neuropathy and a heart condition as well as whether new and material evidence has been received to reopen a claim for service connection for a skin disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. An unappealed August 1987 rating decision denied entitlement to service connection for PTSD. 2. An unappealed March 1992 rating decision continued to deny service connection for PTSD on the basis that new and material evidence had not been received. 3. By rating decision of November 2005, the RO granted entitlement to service connection for PTSD, assigning an effective date of March 28, 2005; the Veteran did not file a timely notice of disagreement with the effective date assigned. CONCLUSIONS OF LAW 1. An August 1987 rating decision that denied entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002). 2. A March 1992 rating decision that continued to deny entitlement to service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002). 3. The November 2005 rating decision assigning a March 28, 2005 effective date for the grant of service connection for PTSD is final. 38 U.S.C.A. § 7105 (West 2002). 4. The criteria for an effective date earlier than March 28, 2005, for the grant of service connection for PTSD are not met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159(2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. It also requires VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Concerning the issue of entitlement to an earlier effective date for the grant of service connection for depression, the Board notes that VA's General Counsel has held that VCAA notice is not required for downstream issues. VAOPGCPREC 8-2003. Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess, 19 Vet. App. at 490. In this case, the Veteran's claim of service connection for PTSD was granted in November 2005, and he was assigned a disability rating and an effective date in that decision. As the effective date issue currently before the Board stems from a disagreement with a downstream element, no additional notice is required with respect to that issue because the purpose that the notice is intended to serve has been fulfilled with respect to that claim. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his VA treatment records and statements from the Veteran. There is no suggestion that additional evidence, relevant to the matters decided herein, exists and can be procured. Thus, the Board is satisfied that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were fulfilled. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issues on appeal. The outcome of this appeal turns on a determination as to the date that a claim of service connection was filed based on information and evidence that has already been associated with the claims file. There is no need for a medical examination and or opinion. Thus, the Board is satisfied that no further development action is required. II. Legal Criteria & Analysis Except as otherwise provided, the effective date of an evaluation and award of 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 U.S.C.A. § 5110; 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). A "claim" or "application" is 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). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. In a March 28, 2005 informal claim, the Veteran requested to reopen his claim for PTSD. In a November 2005 rating decision, the RO granted entitlement to service connection for PTSD and assigned a 50 percent disability rating, effective March 28, 2005. In November 2005, the Veteran disagreed with the rating assigned, but did not express disagreement with the effective date assigned for the grant of service connection. In a September 2008 statement, the Veteran requested an earlier effective date for his "service connected PTSD." This statement was treated as an informal claim effectively seeking entitlement to an earlier effective date for the grant of service connection for PTSD. He claimed that his symptoms dated back to 1982; however, he was never placed in to the right program based on his condition. The Board acknowledges that Veteran timely disagreed with the initial rating assigned in the November 2005 rating decision for which a rating decision issued in August 2007, increased the rating assigned for PTSD to 100 percent disabling, effective March 28, 2005. However, overall, a claim or case for benefits is comprised of separate issues and once service connection is granted, the rating and the effective date are issues that require separate NODs to be placed in appellate status. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date); Holland v. Gober, 10 Vet. App. 433 (1997). In this case, the effective date for the grant of service connection was established in the November 2005 rating decision. Although the Veteran initiated a timely appeal of the initial rating assigned, no appeal was initiated as to the effective date of the grant of service connection, which is a separate issue. The September 2008 communication from the Veteran in which he expressed disagreement with the March 28, 2005 effective date assigned for the grant of service connection for PTSD, is outside the one year window for filing a notice of disagreement with the November 2005 rating decision. None of the communications submitted to VA within one year of notice of the November 2005 determination expressed disagreement with the effective date assigned to the grant of service connection for PTSD. Consequently, the November 2005 rating decision and the effective date issue are final. 38 U.S.C.A. § 7105. Furthermore, although in September 2008 the Veteran advanced a claim for an earlier effective date for the grant of service connection for PTSD, the Court has made it clear that there can be no freestanding claim for an earlier effective date because to allow such a claim would be contrary to the principle of finality set forth in 38 U.S.C.A. § 7105. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In other words, applicable law afforded the Veteran a one year period after notice of the November 2005 rating decision to appeal from the effective date assigned by that decision. Since the Veteran did not file a timely notice of disagreement to initiate an appeal with effective date assigned for the grant of service connection, the finality of the effective date precludes an attempt to now claim an earlier effective date on grounds other than clear and unmistakable error, which has not been alleged or shown. The Board also acknowledges that an unappealed August 1987 rating decision denied entitlement to service connection for PTSD and an unappealed March 1992 rating decision continued to deny the claim of service connection for PTSD on the basis that new and material evidence had not been received. These decisions became final. 38 U.S.C.A. § 7105 (West 2002). Subsequent to the March 1992 rating decision and prior to the March 28, 2005, there was no communication from the Veteran that indicating his intent to reopen his claim for service connection for PTSD. Nothing in the claims file received during this time period may be construed as a formal or informal claim seeking to reopen the claim of service connection for PTSD. Furthermore, the Veteran does not allege he submitted an application to reopen the claim at any time after the March 1992 rating decision and prior to the March 2008 informal claim. Hence, the earliest date after March 1992, the Veteran expressed an intent to file a claim seeking service connection for PTSD is March 28, 2005, and an effective date prior to that date cannot be granted. Additionally, the Veteran has not claimed and the record does not reflect error in the August 1987, March 1992, or November 2005 rating decisions. Accordingly, there is no basis for finding clear and unmistakable error and/or assigning an earlier effective date for the grant of service connection. ORDER An effective date prior to March 28, 2005 for the grant of service connection for PTSD is denied. REMAND After a careful review of the Veteran's claims file the Board finds that additional development is warranted for the issues of entitlement to service connection for peripheral neuropathy and a heart condition as well as whether new and material evidence has been received to reopen a claim for a skin condition. The Veteran seeks entitlement to service connection for peripheral neuropathy and to reopen a previously denied claim of entitlement to service connection for a skin condition. Review of the record reflects that he has been awarded disability benefits by the Social Security Administration (SSA). The nature of the disability or disabilities for which SSA disability benefits have been awarded is unclear. There is no indication that the RO has attempted to obtain the Veteran's SSA file. It is not clear whether these records contain evidence pertaining to claims on appeal. However, since there is no indication to the contrary, the Board concludes that a remand is necessary to obtain any SSA determination and medical records associated with the determination. Once VA is put on notice that the Veteran is in receipt of SSA benefits, VA has a duty to obtain the records associated with that decision. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Indeed, his SSA records may be relevant to the claim to reopen, as they may constitute new and material evidence upon which the claim may, at the very least, be reopened. Graves v. Brown, 8 Vet. App. 522, 524-25 (1996) (holding that, where the VA is on notice of the existence of evidence that might constitute new and material evidence to reopen a claim, the VA should inform the Veteran to submit it and assist him, where possible, in obtaining it); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998). Additionally, his SSA records may be relevant to his claim of service connection for peripheral neuropathy as well. Accordingly, any records with the Veteran's SSA award must be obtained. In a March 2012 determination, the RO denied service connection for a heart condition. In August 2012, the Veteran submitted a statement that can be reasonably construed to be a Notice of Disagreement with the RO's denial of service connection for a heart condition in the March 2012 determination letter. See 38 C.F.R. § 20.201 (a notice of disagreement must be in terms which can be reasonably construed as disagreeing with an adverse determination and a desire for appellate review). See also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (filings must be read "in a liberal manner" or "sympathetically" to the veteran). A statement of the case has not been issued as to this issue. 38 U.S.C.A. § 7105(a) (West 2002). The Board is required to remand this issue for issuance of the necessary statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make the decision. All efforts to obtain these records must be documented. Efforts to obtain these records should continue until they are obtained or it is reasonably certain that they do not exist or that further efforts would be futile. If any records are unavailable, the Veteran should be notified of the identity of the records that are unavailable, the efforts VA has undertaken to obtain the records, and any further action that may be taken concerning his claims, and he should be notified to submit any additional records. All such notification must be documented in the claims file. 2. The agency of original jurisdiction (AOJ) should issue a statement of the case as to the issue of service connection for a heart condition. This issue should not be certified to the Board unless a sufficient substantive appeal is submitted. 3. The RO/AMC should review the claims file to ensure that all the foregoing requested development is completed, and thereafter, arrange for any additional development indicated. The RO/AMC should then readjudicate the remaining issues on appeal. If any benefit sought remains denied, the RO/AMC should issue an appropriate SSOC (Supplemental Statement of the Case) and provide the Veteran and his representative the requisite time period to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs