Citation Nr: 1326420	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  10-05 302	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an effective date prior to May 27, 2008, for the award of service connection for posttraumatic stress disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran served on active duty from February 1967 to February 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA.


FINDINGS OF FACT

1.  On May 27, 2008, more than one year following his discharge from service, the Veteran filed his original claim seeking service connection for posttraumatic stress disorder (PTSD).

2.  The Veteran met the eligibility requirements, except for the filing of a claim, for the award of service connection for PTSD as of April 11, 1980.


CONCLUSION OF LAW

The criteria for an effective date of May 27, 2007, for the award of service connection for PTSD have been met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.114, 3.400 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Even so, a June 2008 letter to the Veteran informed him that an effective date for the award of benefits would be assigned if service connection was granted, and the letter discussed the factors considered in establishing the effective date.  Therefore, no further notice as to this claim is needed.

The duty to assist the Veteran has also been satisfied in this case.  The RO has obtained the Veteran's service treatment records, and his identified VA and private medical treatment records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In addition, the outcome of this earlier effective date claim rests with evidence that is already in the claims folder.  See Nelson v. Principi, 18 Vet. App. 407, 410 (2004).  Thus, no reasonable possibility exists that additional assistance would aid in substantiating the Veteran's claim herein.

There is no sign in the record that additional evidence relevant to the issue being addressed is available and not part of the record.  See Pelegrini, 18 Vet. App. at 112.  As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 473.  

II.  Legal Criteria

In general, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service.  38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).  

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA.  38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012).  

A "claim" is defined broadly to include 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) (2012); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim.  Such an informal claim must identify the benefits sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  38 C.F.R. § 3.155(a) (2012).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

Additionally, 38 U.S.C.A. § 5110(g) allows for retroactive payments for up to one year prior to the date of claim for an award of compensation pursuant to any Act or administrative issue.  The evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim.  38 C.F.R. § 3.114(a) (2012).  VA's General Counsel has held that the addition of PTSD to the rating schedule in 1980 may be considered a liberalizing VA issuance for purposes of 38 C.F.R. § 3.114(a).  See VAOPGCPREC 26-97 (July 16, 1997).  However, a retroactive effective date cannot be assigned unless evidence establishes that the veteran had developed PTSD as of April 11, 1980, and that the disability continued up to the date that the claim for compensation was filed.  Id.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

III. Factual Background and Analysis

The Veteran is seeking an effective date prior to May 27, 2008, for the award of service connection for PTSD.  He contends that he first started to receive treatment for his PTSD in 1981.

Following a review of the record, the Board finds that an earlier effective date is warranted for the award of service connection for the Veteran's PTSD-May 27, 2007.  That date is one year prior to the date of receipt of his initial claim for service connection that was awarded pursuant to a liberalizing VA issue.  38 U.S.C.A. § 5110(a), (g); 38 C.F.R. §§ 3.114(a), 3.400.  

While the Veteran did file claims seeking entitlement to service connection for other disabilities over the years, including hemorrhoids in 1973 and multiple myeloma in 1996, he made no reference to a claim seeking service connection for PTSD or any other psychiatric disorder until his original claim filed on May 27, 2008.  

There is medical evidence of record referencing psychiatric treatment as early as 1981, but there is no indication of an intent to claim service connection for a psychiatric disorder prior to May 27, 2008.  See Ellington v. Nicholson, 22 Vet. App. 141 (2007) (finding that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefits); Brannon v. West, 12 Vet. App. 32 (1998) (noting that the mere presence of medical evidence does not establish an intent to seek service connection for a psychiatric disorder).  It is clear that the Veteran did not file a formal or informal claim for service connection for PTSD prior to May 27, 2008.  

Although a claim was not filed earlier, the grant of service connection for PTSD by the March 2008 rating decision was the result of a liberalizing change of law or VA issue as contemplated by 38 C.F.R. § 3.114 according to VAOPGCPREC 26-97.  The salient question is whether the Veteran had developed PTSD as of April 11, 1980, and that the disability continued up to the date that the claim for compensation was filed.

VA medical records show treatment for anxiety and depression problems as early as 1981.  Provisional diagnoses included depressive reaction, anxiety neurosis and even "rule out post traumatic stress syndrome."  It was noted at that time that the Veteran seemed to have a lot of preoccupation with Vietnam.  Additionally, in May 2008, the Veteran's private counselor provided a diagnosis of chronic PTSD with the onset of 1968 from stressors pertaining to the Vietnam War.  There is no affirmative evidence that the Veteran did not have PTSD as April 11, 1980, and that the disability continued to May 27, 2008, when he filed his claim.  Resolving reasonable doubt in the Veteran's favor, the Board finds that he met the eligibility requirements, except for the filing of a claim, for the award of service connection for PTSD as of April 11, 1980.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, the Board concludes that the criteria for an earlier effective date have been met-to May 27, 2007, which is one year earlier than the date of claim for an award pursuant to a liberalizing VA issue.  See 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a); VAOPGCPREC 26-97.


ORDER

An effective date of May 27, 2007, for the award of service connection for PTSD is granted, subject to laws and regulations governing the payment of monetary benefits.



____________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs