Citation Nr: 1324205 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 04-43 884 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to an effective date earlier than March 18, 1996 for the grant of service connection for posttraumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) had active military service from June 1968 to October 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal of an August 2003 rating decision by the RO in Oakland, California, which continued an effective date of April 19, 2000, for the award of service connection for PTSD. This appeal has been before the Board on previous occasions and was remanded in July 2009, March 2010, and March 2011. An October 2010 rating decision assigned an earlier effective date of March 18, 1996 for the grant of service connection for PTSD. The Veteran contends that the effective date of the grant of service connection for PTSD should be set in 1982. As the grant during the pendency of this appeal does not represent a total grant of benefits sought on appeal, the claim for entitlement to an earlier effective date remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Ratings decisions in January 1983, May 1990, and March 1994 denied previous claims for service connection for PTSD. 2. Following the March 1994 rating decision, the first petition to reopen the claim for service connection for PTSD was received on March 18, 1996. 3. The RO awarded service connection in 2002 based on new and material evidence which was not comprised of additional service department records. CONCLUSION OF LAW The criteria for an effective date earlier than March 18, 1996 for service connection for PTSD are not met. 38 U.S.C.A. §§ 5107, 5108, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). This appeal has been resolved based on undisputed facts of the record related to whether prior denials of service connection for PTSD became final and the earliest date of claim received thereafter. The Veteran did not separate from service for a disability. See McGee v. Peake, 511 F.3d 1352, 1358 (Fed. Cir. 2008). As discussed above, the Board has found that the currently assigned effective date was based on the first received claim for service connection for PTSD after the most recent final denial of service connection for PTSD. No amount of notice or assistance in obtaining either records or medical examinations or opinions can alter the outcome of this case. As discussed below, compliant VCAA notice with regard to the claim on appeal was issued to the Veteran in March 2011 and the claim was readjudicated in December 2012. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Therefore, the duty to notify has been satisfied. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded this case three times and each remand will be addressed in turn. The Board remanded in July 2009 to provide the Veteran with an opportunity to testify before a Travel section of the Board. An August 2009 letter from the RO to the Veteran shows that the RO had scheduled the Veteran for a Travel Board hearing in October 2009. A notation on the letter reflects that the Veteran failed to report for the hearing. As the Veteran did not request a rescheduling of the hearing or show good cause for his failure to appear, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). The RO complied substantially with the remand instruction. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board remanded in March 2010 to provide the RO the opportunity to address an inextricably intertwined motion for revision of an August 1996 rating decision on the basis of clear and unmistakable error (CUE) prior to reaching the merits of the instant appeal and to address a contention from the Veteran's representative that the August 1996 rating decision had not become final due to a timely appeal. The RO determined that the August 1996 rating decision had not become final because of a timely appeal and assigned an effective date of March 18, 1996 for the award of service connection for PTSD. The lack of finality in the August 1996 rating decision mooted the CUE motion. These determinations fully addressed this March 2010 remand instruction. The March 2010 remand also instructed that the RO address in the first instance contentions raised by the Veteran's representative in the January 2010 Written Brief Presentation, including whether the Veteran's September 1982 statement should be construed as a notice of disagreement (NOD) to the August 1982 deferred rating action. As will be discussed in detail below, intervening precedent has mooted this argument. See Shipley v. Shinseki, 24 Vet. App. 458, 461-62 (2011). No prejudicial error can exist as to this instruction as a matter of law. The March 2010 also instructed that the Veteran be provided with appropriate notice of the evidence necessary to substantiate his claim and assist him in obtaining and fully developing all of the evidence relevant to his claim for an effective date earlier than April 19, 2000 (the effective date at the time of the March 2010 remand) for the grant of service connection for PTSD. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Although the Veteran was sent an April 2010 letter by the RO ostensibly to comply with this instruction, the Board determined in March 2011 that the April 2010 letter did not provide adequate notice. The Board remanded in March 2011 to correct this error. See Stegall. The Veteran was sent a March 2011 letter which did provide adequate notice of the evidence necessary to substantiate his claim and assist him in obtaining and fully developing all of the evidence relevant to his claim for an effective date earlier than March 18, 1996 for the grant of service connection for PTSD. The Board notes that the Veteran responded in April 2011 and requested that a variety of records be associated with the record. His responses and the records he requested were not relevant to the outcome of this appeal. The appeal was readjudicated and a supplemental statement of the case was issued in December 2012. The Board finds that these actions discharged the March 2010 and March 2011 remand instruction as to the duty to notify. The Board finds that the RO complied substantially with July 2009, March 2010, and March 2011 remand instructions. Further remand for additional development of the prior remand instructions is not warranted. See Stegall. Earlier Effective Date for the Award of Service Connection By an October 2002 rating action, the RO granted service connection for PTSD, effective from April 19, 2000, the date of receipt by VA of an application to reopen the Veteran's claim for service connection for PTSD. See 38 C.F.R. § 3.400 (2012). While this case was on remand, the RO concluded that the Veteran had continuously pursued a March 18, 1996 application to reopen the PTSD service connection claim. However, the Veteran contends that the effective date of the grant of service connection for PTSD should be set in 1982, when he filed his original claim for service connection for PTSD. For the reasons that follow, the Board finds that prior rating decisions of January 1983, May 1990, and March 1994 became final as to the Veteran's previous claims for service connection for PTSD, that after the March 1994 rating decision VA received the first claim to reopen service connection for PTSD on March 18, 1996, and that the grant of service connection was not based on new and material evidence comprised of additional service department records. In light of these facts, the Board concludes that the criteria for an effective date earlier than March 18, 1996 are not met. Law and Regulations The Board has thoroughly reviewed all the evidence in the Veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the competency, credibility and probative weight of the relevant evidence, both lay and medical, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim 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(a); 38 C.F.R. § 3.400. Similarly, the effective date for an award of service connection based on a claim reopened due to the submission of new and material evidence not received within one year of the prior decision is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q), (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 but were not associated with the claims file when VA first decided the claim, VA will reconsider, rather than reopen, the claim. See 38 C.F.R. § 3.156(c) (1996). During the course of this appeal, relevant sections of 38 C.F.R. § 3.156 have been revised. The Board will apply that version in effect in March 1996. From June 10, 1993, to September 2006, 38 C.F.R. § 3.400(q)(2) provided that the effective date for an evaluation and award of compensation based on a claim reopened due to the receipt of new and material evidence in the form of service department records was "to agree with evaluation (since it is considered these records were lost or mislaid) or date of receipt of claim on which prior evaluation was made, whichever is later . . . ." 38 C.F.R. § 3.156(c) provided that: 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. . . . An award made based all or in part on the supplemental service department records is effective on the date entitlement arose or the date VA received the previously denied claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously denied claim. Id. Analysis The Veteran filed his initial claim for service connection for PTSD in January 1982. The RO obtained service personnel records during the course of development. Following completion of development, the RO denied the Veteran's claim of entitlement to service connection for PTSD in a January 1983 rating decision. The Veteran was provided notice of the decision and his appellate rights (VA Form 1-4107) in March 1983 at his address of record. To prevent finality from attaching, a Veteran must file a Notice of Disagreement or new and material evidence must be received within one year of the notice of the adverse rating decision such that VA must reconsider the claim. See Young v. Shinseki, 22 Vet. App. 461, 466 (2009). The Veteran filed many statements in the year following the March 1983 notification but none disagreed with the January 1983 rating decision, including statements in October, November, and December 1983. He also underwent a January 1984 VA examination for a right knee disability, the report of which does not mention PTSD or any other psychiatric disability. The Veteran's representative submitted a January 2010 brief arguing that a September 1982 statement should be construed as a notice of disagreement (NOD) to an August 1982 deferred rating action, and that because he had filed a timely NOD, his claim had been pending since January 1982 when he filed his initial claim. The RO prepared two deferred rating actions in March and August 1982. Both indicated that additional development of the record was required prior to adjudication of the PTSD claim. As a matter of law, a valid Notice of Disagreement cannot be filed against deferred rating decisions. See Shipley v. Shinseki, 24 Vet. App. 458, 461-62 (2011). The representative's argument must fail. None of the Veteran's statements received by VA in the year after notice in March 1983 pertain to PTSD. The September 1982 statement could not disagree with the January 1983 rating decision because the Veteran could not have known the outcome of the adjudication at that time. Considering the record after the January 1983 rating decision and after the March 1983 notice of the rating decision, the Board finds that the Veteran did not file a Notice of Disagreement against the January 1983 rating decision. Additional evidence was received in the year following the March 1983 notice letter, but none was pertinent to PTSD. The Veteran had filed a claim for an increased rating for his right knee disability. Additional treatment records were obtained which did not address PTSD. As neither the Veteran's statements nor the additional treatment records relate to an unestablished fact necessary to substantiate the PTSD claim, the additional evidence cannot be material. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Board concludes that finality was not prevented from attaching by receipt of new and material evidence within one year of the March 1983 notice of the January 1983 rating decision. See 38 C.F.R. § 3.156(b) (2012). In light of the foregoing, the Board finds that the Veteran did not file a Notice of Disagreement nor was new and material evidence received within one year of notice of the adverse rating decision. The January 1983 rating decision became final. See 38 U.S.C.A. § 7105; see Young, 22 Vet. App. at 466; see also 38 C.F.R. §§ 20.302(b), 20.1103. A December 1989 rating decision continued the denial of service connection for PTSD for lack of a current disability. Additional evidence was received following the December 1989 decision and the claim denial was continued in a May 1990 decision letter. See 38 C.F.R. § 3.156(b). The Veteran was provided notice of the decision and his appellate rights in a May 1990 notice letter at his address of record. The Veteran did not file a Notice of Disagreement nor was new and material evidence received within one year of notice of the May 1990 adverse rating decision. In a March 1994 decision letter, the RO denied another of the Veteran's claims to reopen service connection for PTSD. The Veteran was provided notice of the decision and his appellate rights in a March 1994 notice letter at his address of record. He did not appeal following the March 1994 decision letter and no new and material evidence was received within one year. The May 1990 and March 1994 decisions became final. See 38 U.S.C.A. § 7105; see Young; see also 38 C.F.R. §§ 20.302(b), 20.1103. The Board emphasizes that effective dates are based on the later of the date of receipt of a new claim for benefits or the date entitlement arose following a prior final denial. See 38 C.F.R. § 3.400(q). After March 1994, the Veteran did not file another statement regarding PTSD until March 18, 1996. Even if entitlement arose earlier than March 18, 1996, the March 18, 1996 date of the claim to reopen is the later of the two, necessitating an effective date based on the date of receipt of the claim to reopen service connection. See id. Service connection for PTSD was granted in a 2002 rating decision based in part on review of the Veteran's military personnel records. The RO obtained some of the Veteran's service personnel records during initial development of the Veteran's January 1982 claim. The RO denied the original service connection claim and subsequent attempts to reopen the service connection claim on the basis that the Veteran did not have a current disability of PTSD in 1983, 1989, 1990, and 1994. The RO reopened and granted the service connection claim after sufficient new and material evidence was received that the Veteran indeed had PTSD was associated with the claims file. The October 2002 rating decision also relied on the service personnel records obtained in 1982 for confirmation of the Veteran's stressors. No additional service department records were obtained after the original denial of the claim in January 1983. Therefore, the new and material evidence was not comprised of additional service department records, because no additional service department records were received following the original 1983 denial of service connection. In light of the foregoing, the reconsideration rule of 38 C.F.R. § 3.156(c) does not apply. The finality of the January 1983, May 1990, and March 1994 rating decisions forms a bar to an effective date earlier than those decisions. See 38 C.F.R. § 3.400(q). In sum, the Board finds that the preponderance of the evidence demonstrates that the Veteran's original claim and attempts to reopen the claim for service connection for PTSD were finally denied in January 1983, May 1990, and March 1994. The preponderance of the evidence also demonstrates that service connection was not granted on the basis of new and material evidence comprised of additional service department records. The preponderance of the evidence demonstrates that the Veteran's first claim to reopen service connection for PTSD after the March 1994 rating decision was received by VA on March 18, 1996. Finally, the ultimate reopening and award of service connection for PTSD was not based on new and material evidence comprised of additional service department records. Based on 38 C.F.R. § 3.400, the effective date for a reopened claim of service connection is based on the later of the date entitlement arose or the date the claim to reopen was received, whichever is later. The effective date for service connection can be no earlier than March 18, 1996. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim for an earlier effective date than March 18, 1996 for the award of service connection for PTSD. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER An effective date earlier than March 18, 1996 for the grant of service connection for PTSD is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs