Citation Nr: 1324651 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 10-28 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than July 31, 1995 for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to August 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In essence, this decision effectuated the Board's grant of service connection for PTSD via a December 2008 decision. The RO assigned an initial rating of 30 percent, effective from May 12, 2003. The Veteran appealed, contending that a higher rating was warranted for the PTSD, and that he was entitled to an earlier effective date for the establishment of service connection for this disability. In September 2011, the Board remanded the issue of entitlement to higher ratings and granted an effective date of July 31, 1995 for the grant of service connection for PTSD. The Veteran appealed the effective date issue to the U.S. Court of Appeals for Veterans Claims (Court). In June 2012, the Court granted the parties' joint motion for remand, vacating the Board's decision with respect to the effective date issue and remanding for action consistent with the joint motion. FINDINGS OF FACT 1. The Veteran first presented a claim of entitlement to service connection for an acquired psychiatric disorder, to include anxiety neurosis and agoraphobia, on June 25, 1981. 2. A September 1981 deferred or confirmed rating decision concluded that the Veteran failed to prosecute his claim; the RO determined that the evidence was insufficient for rating purposes. 3. On April 24, 1995, the Veteran submitted a claim of entitlement to service connection for PTSD; on July 31, 1995 he submitted a statement identifying the stressors upon which his PTSD was based. 4. In October 2008, the Veteran's attorney submitted unit records obtained by the Veteran. These records confirm that in September 1966, a riot occurred at the Long Binh stockade, and that the Veteran was present in the military police unit at Long Binh at the time of the incident. Such constitutes relevant official service department records that existed and had not been associated with the record when VA first considered the Veteran's claim. 5. VA had sufficient information at the time of the September 1981 decision to obtain records from the service department pertaining to the Veteran's stressor. CONCLUSION OF LAW The requirements for an effective date of June 25, 1981, for the grant of service connection for PTSD have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.159(c), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board observes, however, that this appeal arises from a disagreement with the initial rating and effective date assigned following the establishment of service connection for PTSD. In Dingess v. Nicholson, 19 Vet. App. 473, 490-1 (2006), the Court held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case is satisfied. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). The Board further notes that the Veteran has actively participated in the processing of his case, and the statements submitted in support of his claims, to include from his attorney, have indicated familiarity with the requirements for the benefits sought on appeal. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (VA can demonstrate that a notice defect is not prejudicial if it can be demonstrated ... that any defect in notice was cured by actual knowledge on the part of the appellant that certain evidence (i.e., the missing information or evidence needed to substantiate the claim) was required and that the appellant should have provided it.); see also Overton v. Nicholson, 20 Vet. App. 427 (2006). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The Board also finds that the duty to assist a claimant in the development of his or her case has been satisfied with respect to his earlier effective date claim. Various records are on file, and nothing indicates the Veteran has identified the existence of any relevant evidence regarding this claim that has not been obtained or requested. The Veteran did not indicate that a hearing was desired in conjunction with this case. Moreover, the Board notes that, as a general rule, the adjudication of a claim for an earlier effective date is based upon evidence already in the claims folder; the resolution of the claim depends upon when certain document(s) were either received by VA and/or promulgated to the Veteran. Consequently, there is no additional development that can be conducted, nor any other records which can be obtained, which would substantiate the Veteran's claims. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. Analysis The effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In this case, the Board notes that the Veteran has submitted various claims over the years regarding entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran submitted a claim of entitlement to service connection for an acquired psychiatric disorder, to include anxiety neurosis and agoraphobia, on June 25, 1981. He indicated that he had lost employment in January 1980 due to the claimed condition, and that he had been treated at the Hillsborough Community Mental Health Center. In July 1981 the RO sought records from Hillsborough. In response, that facility provided copies of two letters regarding the Veteran's treatment. A September 1980 letter from a psychiatric social worker indicates that the Veteran's psychiatric history dated to 1973. She indicated that the Veteran had completed a tour in Vietnam as a military policeman. She provided a diagnosis of anxiety neurosis in an inadequate person. A September 1981 deferred or confirmed rating decision by the RO concluded that the Veteran had failed to prosecute his claim; the RO determined that the evidence was insufficient for rating purposes. On April 24, 1995, the Veteran submitted a claim of entitlement to service connection for PTSD. On May 25, 1995 the RO received competent medical evidence showing a diagnosis of PTSD, in the form of an undated medical statement from Georgia Pines Community Mental Health Services. That statement indicates that the Veteran's symptoms developed five years after his service in Vietnam. In a statement received by VA on July 31, 1995, the Veteran identified the stressor upon which service connection was ultimately established for PTSD. Specifically, he stated that a riot that took place at the Long Binh stockade while he was posted there. An October 1995 rating decision denied service connection for severe anxiety, agoraphobia, panic attacks, and PTSD. A May 1996 rating decision continued the denial of service connection for PTSD. Although the Veteran initiated an appeal to that decision by filing a timely notice of disagreement he did not perfect it by filing a timely substantive appeal after a statement of the case was promulgated in June 1997. The May 1996 rating decision thus became final. Following the June 1997 statement of the case, the Veteran did not submit any claim indicating he was seeking service connection for PTSD until May 12, 2003. A February 2007 Board decision found that new and material evidence had been received to reopen the PTSD claim, but denied the underlying service connection claim on the merits finding, in part, that there were no verified stressor(s). A February 2008 Order from the Court vacated the Board's February 2007 decision. The joint motion which was the basis for the Court's Order stated, in part, that the Secretary failed to ensure that all pertinent records regarding the Veteran's claimed stressors were obtained from the U.S. Armed Service Center for Research of Unit Records (USACRUR), and did not notify the Veteran that it had been unable to obtain record from USACRUR verifying his alleged stressors. In October 2008, the Veteran's attorney submitted unit records obtained by the Veteran. These records confirm that in September 1966, a riot occurred at the Long Binh Stockade, and that the Veteran was present in the military police unit there at the time of the incident. Service connection was ultimately established for PTSD by a December 2008 Board decision. In pertinent part, that decision noted that the evidence included competent medical diagnosis of PTSD, and that the Veteran himself had submitted unit records documenting his purported stressor of a riot at the stockade where his military police unit was stationed in Vietnam. In its September 2011 decision, the Board observed that the effective date for the establishment of service connection could normally not be earlier than the date of the application to reopen, which is the current May 12, 2003, effective date in this case. However, it ultimately concluded that an effective date of July 31, 1995 was warranted, the date of receipt of a stressor statement from the Veteran. The Board also acknowledged the Veteran's assertion that the effective date should be from when he filed his original claim on June 25, 1981, noting that his attorney had cited to the cases of Vigil v. Peake, 22 Vet. App. 63 (2008) and Mayhue v. Shinseki, 24 Vet App 273 (2011) in support of this contention. The Board notes that the cited case law involves the application of 3.156(c), a specific provision of law allowing for the case to automatically be reopened and allowing for an earlier effective date based upon the date of the receipt of the prior final claim when additional service records that existed and were not previously of record become associated with the claims file. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to an earlier effective date for the grant of service connection for PTSD. In Mayhue, the Court acknowledged that the Veteran did not comply with VA's repeated requests to submit additional evidence to verify his claimed stressors; however, VA ultimately granted service connection for PTSD based on attacks on the base camp when the Veteran was stationed in Vietnam. It was noted that the information that Center for Unit Records and Research (CURR) used to verify that stressor, namely his unit number and dates of service in Vietnam, were always a part of the claims file. Therefore, notwithstanding the fact that the Veteran did not cooperate fully with VA's requests for information to verify other alleged stressors, the Court determined that VA's failure to verify the attacks on the base camp was the result of an administrative error in locating his unit records. Here, as in Mayhue, the unit records that verified the Veteran's stressor were always constructively a part of the claims file. 38 C.F.R. § 3.156(c) provides that, notwithstanding any other section of 38 C.F.R. Part 3, 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, notwithstanding 38 C.F.R. § 3.156(a) (concerning the requirement to reopen a previously finally denied claim with new and material evidence). This includes (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, as long as the other requirements of 38 C.F.R. § 3.156(c) are met; (ii) additional service records forwarded by the Department of Defense or the service department any time after VA's original requires for service records; and (iii) declassified records that could not have been obtained when the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(2) provides that such records do not include 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 form the respective service department, the JSRRC, or from any other official source. However, the Court in Mayhue determined that that regulatory provision was inapplicable to the facts of that case. In Mayhue, the RO was able to utilize the Veteran's unit number and dates of Vietnam service, which was information contained in the claims file when VA initially decided the claim, to verify the stressor upon which the grant of service connection was later based. In the instant case, the record at the time of the September 1981 deferred rating decision contained sufficient information to verify the Veteran's Vietnam service and the units in which he served during that time. In essence, the information necessary to substantiate a stressor pertaining to the Veteran's Vietnam service was constructively in VA's possession. 38 C.F.R. § 3.156(c)(3) provides that 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 previous claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously denied claim. In Mayhue, the Court observed the Secretary's statement in the proposed rule amending 38 C.F.R. § 3.156(c) that the reason VA reconsiders decision based on newly discovered service records is "that a claimant should not be harmed by an administrative deficiency of the government." The Court determined that such an administrative deficiency occurred in that case and pre-dated the Veteran's failure to cooperate. Based on the foregoing, the Board finds that in this case, as in Mayhue, VA had sufficient information to request verification of the Veteran's Vietnam service, and of the alleged riot to which the Veteran attributed his disability. Indeed, the records received from the Veteran, which substantiated that the Veteran's unit had been involved in containing a riot at the Long Binh stockade, were relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. Thus, VA should have reconsidered the claim, notwithstanding 38 C.F.R. § 3.156(a). In addition, there were private treatment records showing that the Veteran had been diagnosed with an anxiety disorder and that such a diagnosis might have been related to his Vietnam service. Accordingly, an earlier effective date of June 25, 1981, which was the date of the Veteran's original claim, is warranted. The Board has also considered whether an effective date earlier than June 25, 1981 is warranted for the grant of service connection for PTSD. However, the record does not contain any earlier statement or action indicating an intent to file a claim of entitlement to service connection. Therefore, the Board finds that a formal or informal claim was not received prior to June 25, 1981. Accordingly, the Board concludes that Veteran is entitled to an effective date of June 25, 1981, but no earlier, for the grant of service connection for PTSD. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an effective date of June 25, 1981 for the grant of service connection for PTSD is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs