Citation Nr: 1317667	
Decision Date: 05/30/13    Archive Date: 06/06/13

DOCKET NO.  08-08 978	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an effective date earlier than March 26, 2005 for a grant of service connection for posttraumatic stress disorder (PTSD) with major depressive disorder and a history of alcohol abuse, including on the basis of clear and unmistakable error (CUE) in a July 1984 rating decision or an October 2008 rating decision.


REPRESENTATION

Appellant represented by:	James G. Fauzone, Attorney at Law


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel



INTRODUCTION

The Veteran served on active duty (AD) from August 1965 to September 1974.  He also had additional, subsequent, service in the Army Reserves from 1993 to 2007, with several periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA).

This appeal to the Board of Veterans' Appeals (Board/BVA) is from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD with major depressive disorder and a history of alcohol abuse and assigned an effective date of December 16, 2005.  A subsequent January 2010 rating decision confirmed and continued that effective date.

In April 2012, however, the Board issued a decision granting a slightly earlier effective date of March 26, 2005, though no earlier date.  The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court/CAVC), to the extent the Board had denied an even earlier effective date - meaning even earlier than March 26, 2005.

A private attorney represented the Veteran in his appeal to the Court and continues to represent him before VA.  VA's Office of General Counsel represented the Secretary.  In February 2013 the parties filed a Joint Motion asking the Court to partially vacate the Board's decision to the extent it had denied an even earlier effective date - meaning even earlier than March 26, 2005 - and to remand the claim to the Board for readjudication and provision of an adequate statement of reasons and bases consistent with points noted in the Joint Motion.  The Court granted that Joint Motion for Partial Remand (JMR) in an Order issued later in February 2013 and since has returned the file to the Board for compliance with directives specified - notably, consideration of 38 C.F.R. § 3.156(c)(1) and the Court's holdings in Vigil v. Peake, 22 Vet. App. 63, 67 (2008) and Mayhue v. Shinseki, 24 Vet. App. 273, 280 (2011).



FINDINGS OF FACT

1.  On August 5, 1983, the Veteran filed his initial claim of entitlement to service connection for PTSD (then claimed as "delayed stress syndrome", etc.), which the RO considered and denied in an October 1983 rating decision

2.  Late in October 1983, in response, he filed a timely notice of disagreement (NOD) to initiate an appeal of that decision.

3.  Rather than providing him a statement of the case (SOC), the RO instead readjudicated his claim in a July 1984 rating decision, but continued to deny his claim, even when considering additional evidence since the initial October 1983 decision, on the premise that he did not have a verified stressor in service.

4.  He did not appeal that July 1984 decision.

5.  He also did not appeal a subsequent August 1989 RO decision that denied his petition to reopen this claim.

6.  Additional service records since has been received, however, which are relevant to his claim and that were associated with the claims file in August 2008 verifying his earlier claimed stressor; and on the basis of these additional records concerning his service, the RO granted his claim for service connection for PTSD in an October 2008 rating decision.

7.  These additional records concerning his service that were associated with the claims file in August 2008 existed at the time of the earlier denials of his claim in October 1983 and July 1984, even though they were not in the file at the time.



CONCLUSION OF LAW

The criteria are met for an even earlier effective date of August 5, 1983, for the grant of service connection for PTSD with major depressive disorder and a history of alcohol abuse.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(c), 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide.  38 C.F.R. § 3.159 (2012).  And when the claim is for service connection, this notice also should include explanation that a "downstream" disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).

Since the Board is fully granting the Veteran's claim, assigning an even earlier effective date back to when he initially filed this claim, the Board need not discuss whether there has been compliance with the duty-to-notify-and-assist provisions of the VCAA because he is receiving the requested benefit, regardless.


Earlier Effective Date

The Veteran contends that the effective date for the grant of service connection for his PTSD should extend back to August 5, 1983, since that was when he first filed his claim of entitlement to service connection for this condition, albeit under the guise of "delayed stress syndrome" (his presumed reference at the time to PTSD).  He contends that, during the pendency of that initial August 1983 claim, he submitted a statement describing his experience in Vietnam and showing he had been diagnosed with PTSD by a VA examiner in May 1984.  He also contends that his PTSD and its relationship to his military service was evident even at the time of that initial claim in August 1983, even though the RO declined to grant this benefit when initially adjudicating his claim in October 1983 and July 1984 rating decisions.

Records in the file confirm he did, in fact, file his initial claim of entitlement to service connection for delayed stress syndrome in August 1983.  As support for that initial claim, VA treatment records dated from November 1981 to January 1982 were obtained and associated with the claims file for consideration.  The RO, however, denied that initial claim in an October 1983 rating decision on the premise that the psychiatric disability claimed, delayed stress syndrome, was not shown by the evidence then of record.  Later that same month, in response, the Veteran submitted a statement in support of claim (on VA Form 21-4138), so within one year of receiving notification of that October 1983 rating decision.  And that statement, when read liberally, may be construed as tantamount to a timely filed NOD with that October 1983 decision.  38 C.F.R. § 20.201; see also Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of 38 C.F.R. § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming that the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task).  Consequently, that October 1983 rating decision was nonfinal and stemmed from his original August 1983 claim.

An SOC was never issued in response to his October 1983 NOD.  An appeal to the Board consist of a timely filed NOD in writing, and after an SOC has been furnished, a timely filed substantive appeal (e.g., VA Form 9 or equivalent statement).  See 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200.  According to 38 U.S.C.A. § 7105(d)(1), once a claimant files a timely NOD, and the Agency of Original Jurisdiction (AOJ), which, here, was the RO, does not resolve the disagreement either by granting the benefit or through withdrawal of the NOD, such agency shall prepare an SOC.  "Section 7105(d)(3) makes the furnishing of an [SOC] the event that triggers the Veteran's obligation to file a 'formal appeal' with the Board[.]"  Cook v. Principi, 318 F.3d 1334, 1340-41 (Fed. Cir. 2002) (en banc).

An SOC must provide a claimant with:  (a) a summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement; (b) a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and (c) the determination of the AOJ, i.e., RO, on each issue and the reasons for each such determination with respect to which disagreement has been expressed.  38 U.S.C.A. § 7105(d); 38 C.F.R. § 19.29.

The Court has held that, where VA failed to furnish a Veteran an SOC after an NOD was filed, the RO decision did not become final and binding, instead, the claim remained pending.  Tablazon v. Brown, 8 Vet. App. 359, 361 (1995) ("[B]ecause the RO did not furnish the appellant with an SOC, he was unable to file a formal appeal to the BVA, and the November 1975 rating decision never became final.").  Further, in Myers v. Prinicipi, 16 Vet. App. 228, 235-36 (2002), the Court determined that a Veteran's original service-connection claim was part of the current claim stream when he had requested appellate review of a prior RO decision, thereby placing the claim in appellate status.  Significantly, the Court has clarified in subsequent case law that "Myers stands for the proposition that once an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board."  Juarez v. Peake, 21 Vet. App. 232, 241 (2007); Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (stating that, as an inferior tribunal, RO lacks authority to usurp Board by collaterally reviewing its decisions).

Here, after receipt of that October 1983 NOD, rather than issuing the required SOC, the RO readjudicated - but continued to deny - this claim on its underlying merits in the July 1984 rating decision because the evidence available at the time was deemed insufficient to establish any particular stressor or life-threatening event in service to which the Veteran's then current symptoms could be attributed.  In a statement submitted shortly after that October 1983 rating decision, he listed his claimed stressors in service, which included grave registration duties.  A May 1984 VA examination diagnosed PTSD attributable, in part, to his reports of graves registration duty.  However, a June 1984 letter from the Department of the Army stated it could not verify that his assigned unit, the 19th Supply and Service (S&S) Company, was involved in any such functions.  The subsequent July 1984 rating decision resultantly confirmed and continued the denial of service connection for delayed stress syndrome because the available evidence then of record was insufficient to establish the occurrence of any particular stressor, including especially graves registration, supporting the notion that the PTSD diagnosis since made was attributable to that or any other traumatic event in service.

Relatively shortly thereafter, in August 1984, the RO notified the Veteran of that decision continuing to deny his claim, and he did not perfect his appeal in response to that additional decision.  38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200.  A subsequent, August 1989, RO decision determined he had not submitted any additional evidence (so not any new and material evidence) since that 1984 decision to reopen this claim.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).  And although appropriately notified of that additional August 1989 decision, that same month, he also did not appeal that decision.  Decisions, if not appealed, become final and binding based on the evidence then of record.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103.  Moreover, in Williams v. Peake, 521 F.3d 1348 (Fed. Cir. 2008), the Federal Circuit Court held that the pending status of a claim is terminated with a later final adjudication of an identical claim.


So, here, at least arguably, any pending status of the claim stemming from the initial October 1983 decision and response NOD filed later that same month was terminated by the readjudication of this same claim in the subsequent July 1984 decision and even more recent August 1989 decision, which were not appealed.  See Beraud v. Shinseki (No. 11-726, Vet. App. May 17, 2013) (a subsequent final adjudication of a claim terminates previous pending identical claims).  In Beraud, the Court noted the facts of that case were distinguishable from the Federal Circuit's decision in Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) because the Bond case did not involve an intervening final decision denying an identical claim.  In a footnote, the Court indicated that absent an intervening final decision, the Board's failure to consider whether 38 C.F.R. § 3.156(b) applied "could potentially be problematic."

The Veteran more recently filed petitions to reopen this claim on March 26, 2005, and on December 16, 2005, and on the basis of that March 2005 petition the Board assigned an effective date retroactive to that point in time (rather than just to December 2005, as the RO had), because it was the most recently filed petition to reopen this claim since the prior final and binding decisions denying this claim.  The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim."  In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim.  Flash v. Brown, 8 Vet. App. 332, 340 (1995).  Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision.  See Rudd v. Nicholson, 20 Vet. App. 296 (2006).  See also Cook v. Principi, 258 F.3d 1311, 1314 (Fed. Cir. 2001) (affirming assignment of an effective date for a service-connection award based upon the reopened claim as the date on which the Veteran "first sought to reopen his claim"); Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir. 2005) (indicating that "no matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date").  See, too, Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) and McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (indicating a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability, but conversely, that a claim that has become final and binding in the absence of an appeal and absent a showing of CUE does not remain pending and subject to an earlier effective date).

The proper effective date for new and material evidence other than STRs received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r).  Conversely, when evidence, other than STRs, is received in the appeal period following a subsequent disallowance, resulting in a later grant of service connection, the effective date will be as though the former decision had not been rendered.  38 C.F.R. § 3.400(q)(1).

Here, in an August 2008 response from the Center for Unit Records Research (CURR) (now referred to as the Joint Services Records Research Center (JSRRC)), it was confirmed that the Veteran's unit did, in fact, participate in graves registration.  Therefore, with the benefit of this confirmation, in October 2008 the RO granted his claim of entitlement to service connection for PTSD and assigned a 50 percent rating retroactively effective from December 16, 2005, as mentioned on the premise that that was the date he had filed his petition to reopen this claim.  But as explained in the Board's prior April 2012 decision, the portion of which was not vacated, he had actually filed a petition to reopen this claim earlier that same year - on March 26, 2005 - and, although he had seemingly elected to withdraw that petition on December 16, 2005, under 38 C.F.R. § 20.204, the Board found just as much evidence in the file, indeed, from that very same date, indicating he wanted to continue pursuing this claim to completion.  So the Board accepted the slightly earlier date of March 26, 2005, as the actual date of receipt of his petition to reopen this claim.  The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received, and "date of receipt" means the date on which a claim, information or evidence was received by VA.  38 C.F.R. § 3.1(r).

If, however, at any time after VA issues a decision on a claim, 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 without first requiring the submission of new and material evidence to reopen the claim.  38 C.F.R. § 3.156(c)(1) (2012).  In other words, the initial or prior decision is not final and binding.  See Vigil v. Peake, 22 Vet. App. 63 (2008) (indicating unit records provided to the RO by CURR or JSRRC constituted official service department records of the type contemplated by 38 C.F.R. § 3.156(c), thus requiring de novo review or reconsideration of the claim, rather than as a petition to reopen the claim).

An award made based all or in part on the records identified by paragraph (c)(1) of this section 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 provisions of this part applicable to the previously decided claim.  38 C.F.R. § 3.156(c)(3).

Exceptions to the provisions of 38 C.F.R. § 3.156(c)(1) include records that VA could not have previously obtained because they did not exist, or because the claimant failed to provide sufficient information for VA to identify and obtain the records.  38 C.F.R. § 3.156(c)(2).

Here, though, the records that the August 2008 CURR response cited were generated during the 1960s, therefore existed at the time of the Veteran's initial claim on August 5, 1983, also importantly at the time of the ROs contemporaneous decisions in October 1983 and July 1984 denying that initial claim, even though these records apparently were not actually in the file when the RO considered the claim in those earlier decisions and even though they were not previously provided in the batch of other military personnel records that were.  Moreover, the request for information was based on his assignment to the 19th Supply and Service Company, which VA was aware of at the time of his initial claim.  Therefore, the exceptions in paragraph (c)(2) do not apply.

In sum, the October 2008 grant of service connection for PTSD was predicated on service department records that verified the Veteran's claimed stressor, the same stressor that he previously had alleged when initially filing this claim, and that were available when his initial claim was denied in October 1983 and July 1984.  Therefore, reconsideration of the October 1983 and July 1984 denials of this claim was warranted.  At the time of those earlier denials, the evidence showed a then current PTSD diagnosis attributable to this stressor in service, so the only impedance to the claim was that this stressor had not been objectively confirmed as actually having occurred, which as mentioned it since has with the location and submission of this additional evidence in the way of service department records.  Therefore, under the provisions of 38 C.F.R. § 3.156(c)(3), the appropriate effective date for the grant of service connection for PTSD is August 5, 1983, which was when the Veteran first filed this claim.

The Veteran also alleged CUE in the July 1984 and October 2008 rating decisions in not assigning this effective date.  Since, however, the Board is granting this effective date, which is the earliest effective date possible, the Board resultantly does not have to address his CUE arguments because they are now moot.  By virtue of the Board's award, a future favorable decision on the CUE claim would only result in the same outcome, the assignment of an effective date of August 5, 1983, especially as there is no earlier evidence of record in the claims file that could be considered as a claim of entitlement to service connection for PTSD.

This award of this earlier effective date of August 5, 1983, for the grant of service connection for this condition does not necessarily mean the 50 percent rating the Veteran initially received for this disability or even the 100 percent and 70 percent ratings that he since have received or, even for that matter, his total disability rating based on individual unemployabilty (TDIU) since predicated entirely on this disability seeing as though it is his only service-connected disability, also will extend back to that earlier date.  The RO will have to determine the appropriate rating for this disability as of August 5, 1983, so will have to assess its severity as of that earlier point in time.  This may require obtaining a 

"retrospective" medical opinion or, at the very least, will require considering the medical and other evidence of record as of August 1983 or thereabouts.  See Chotta v. Peake, 22 Vet. App. 80, 86 (2008).  If the Veteran disagrees with the rating assigned for this disability as of this earlier effective date, he will have to separately appeal this "downstream" issue.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).


ORDER

In the meantime, however, an earlier effective date of August 5, 1983, is granted for the award of service connection for PTSD with major depressive disorder and a history of alcohol abuse.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs