Citation Nr: 1326570 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 08-23 088A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an effective date of earlier than March 31, 2004 for the grant of service connection for Posttraumatic Stress Disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from February 1984 until February 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted service connection and assigned a 70 percent initial rating, effective March 31. 2004. The Veteran appealed the effective date for the grant of service connection in this decision, and the matter is now before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal that are not already of record. FINDINGS OF FACT 1. The Veteran's original claim of service connection for PTSD was received on September 19, 1995. 2. The Veteran has a diagnosis of PTSD, due to a verified in-service stressor. 3. Service connection for PTSD has been established. 4. In March 2004, service department records not previously associated with the claims file were received by VA. CONCLUSION OF LAW The criteria for an effective date of June 8, 1995, but no earlier, for the grant of service connection for PTSD, have been met. 38 U.S.C.A. § 1101, 1131, 5103, 5103A, 5110 (West 2002); 38 C.F.R. § 3.102, 3.156, 3.303, 3.304, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). The Veteran's appeal arises from an appeal of the initial evaluation following the grant of service connection for PTSD. Once service connection is granted the claim is substantiated, additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). It is also noted that the Board is granting an earlier effective date for the grant of service connection for PTSD. Based on the foregoing, adequate notice was provided to the Veteran prior to the transfer and certification of this case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and no further notice is needed under VCAA. Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . or all [Social Security Administration] disability records must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of private and VA treatment as well as records from the Social Security Administration (SSA). These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issue before the Board. The Veteran was afforded a VA examination in July 2005, during which the examiner conducted a psychological examination of the Veteran, was provided the claims file for review, took down the Veteran's history, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2012); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). The Board finds that all necessary development has been accomplished; therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition to the evidence discussed above, the Veteran's statements in support of the claim are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the duties to notify and assist the Veteran in the development of this claim have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Earlier Effective Date for Grant of Service Connection On September 21, 1995, VA received the Veteran's claim for service connection for a psychiatric disorder. VA treatment records revealed that the only identified psychiatric disorder at the time was polysubstance abuse. The RO denied the Veteran's claim as there was no evidence of a connection between the Veteran's service and polysubstance abuse. A June 1996 Social Security Administration (SSA) determination indicated that the Veteran had been diagnosed with a personality disorder, and found his personality disorder to be disabling. In December 1997 correspondence from the Veteran, he inquired as to records relating to the in-service death of an infant and subsequent psychiatric treatment. He again endorsed the in-service death of a baby in February 1999 correspondence to VA. In an April 1998 Notice of Disagreement relating to an April rating decision, the Veteran indicated that ever since the in-service death of a baby due to Sudden Infant Death Syndrome, he has been suffering from symptoms which had caused social and employment-related problems. During an August 1998 hearing before a Decision Review Officer, the Veteran described the aforementioned death of an infant while he had been babysitting the child in January 1987. According to the Veteran's account, the child had been laid down to sleep around ten or eleven o'clock, but when checked on at around three in the morning, the child was dead. A coroner's report found no fault on the part of the Veteran. In January 1999 the RO issued a Statement of the Case indicating the alleged event could not be verified. The Veteran first submitted claim for service connection for PTSD in March 2000. This claim was denied in a rating decision of August 2000. A claim for service connection for PTSD was also denied in March 2002. On March 31, 2004, VA received a new claim from the Veteran for service connection for PTSD. At that time, he also sent VA records dated January 1987 from the U.S. Naval Investigative Service (NIS), a department of the U.S. Navy. The NIS record verified the Veteran's report of the death of an infant in January 1987 while under the Veteran's care. Following a January 2005 VA examination which confirmed the Veteran's diagnosis of PTSD, the RO granted service connection for PTSD in the rating decision on appeal. In establishing an effective date, the RO assigned March 31, 2004 as this was the "date of receipt of the reopened claim." The Veteran contends that the effective date of his award of service connection should be earlier than March 31, 2004. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Additionally, if a claim is received within one year after separation from service, the effective date of an award will be set as the day following separation from active service. 38 C.F.R. § 3.400(b)(2)(i). The date of receipt of the claim, or "date of the claim," means the date of the application based upon which benefits are awarded, not the original claim for service connection. See Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 also refer to the date an application is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are 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), 3.155 (2012); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). When there is a prior final denial of a claim, and new and material evidence is subsequently received to reopen the claim, the effective date of the award of compensation is date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r) (2012). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). In determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Irrespective of whether evidence is "new and material," where VA has issued a decision on a claim, and subsequently 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. Qualifying service department records include, but are not limited to: (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 paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c). During the current period of appeal, the Veteran submitted to VA service department records which existed in 1986 but were not associated with the claims file until the Veteran's submission in 2004; specifically, the January 1986 NIS records confirming the Veteran's alleged stressor event relating to the death of an infant during service. Accordingly, the Board finds that regardless of finality which may have attached to any prior claim of service connection for an acquired psychiatric disorder, such finality was effectively vitiated with the submission of the NIS service department records. Id. A claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim. Mayhue v. Shinseki, 24 Vet. App. 273, 277 (2011). Having established that the prior rating decisions denying service connection are not final, the Board now considerers the earliest effective date which may be assigned. As the claim is being reconsidered, not reopened, the effective date is affixed by operation of 38 C.F.R. § 3.400(b)(2)(i) for entitlement to service connection arising on a direct basis. VA first received a claim from the Veteran for entitlement to service connection for a psychiatric disorder on September 19, 1995. A claim for service connection for a mental disability may encompass claims for service connection of any mental disability that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes and the information the claimant submits or that VA obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In this case, the Veteran has stated that his psychological symptoms have been unremitting since service, which indicates that at the time of his 1995 claim, he was also experiencing the same symptoms based on which his PTSD was later diagnosed. The Veteran is competent to report symptomatology which may be observed. See Layno v. Brown, 6 Vet. App. 465 (1994). Based on a liberal reading of the Veteran's broad claim for a psychiatric disorder in 1995, combined with his subsequent description of symptomatology for which he was diagnosed with PTSD, the Board finds that the claim received on September 19, 1995 was the Veteran's original claim for PTSD. Having found the original date of claim to have been September 19, 1995, the Board is now left to consider whether the date of claim or the date entitlement arose is the later date, and thus the appropriate effective date for the establishment of service connection. See 38 C.F.R. § 3.400(b)(2)(i). Service connection for PTSD requires the presence of three elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2012). With regard to the third element, the Board finds that credible supporting evidence that the claimed in-service stressor actually occurred has existed since the NIS records was created, documenting the death of an infant under the Veteran's care in 1986. Now considering the first and second elements, the Board points to the opinion of the U.S. Court of Appeals of Veterans Claim (the Court) in DeLisio v. Shinseki, 25 Vet. App. 45 (2011). In that case the Court clarified that "entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." DeLisio, 25 Vet. App. at 56. See also Brokowski, 23 Vet. App. 80, 90 (2009) ("[A] medical diagnosis is not necessary to initiate a claim."); and see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a medical diagnosis is not required to substantiate a claim in certain circumstances) The Court also explained that there are instances where the "facts found" or alternatively, "date entitlement arose" may be later than the date of claim. These included (1) date the disability first manifested and (2) the date entitlement to benefits was authorized by law and regulation; (it is noted that these two situations were not listed as the only two situations). Delisio, at 52. Although the Veteran was first diagnosed with PTSD in January 2005, this fact cannot limit establishment of service connection for PTSD to January 2005 merely because this was the date of such diagnosis. Dispositive in this case is not when the Veteran was first diagnosed, but when PTSD first manifested. As to the second situation listed in DeLisio, it has no significance in the Veteran's case because service connection was available by statute and regulation long before the Veteran filed any claim for VA benefits. The Veteran has presented competent evidence that his symptoms have been unremitting since onset during service. The Veteran has been consistent in this contention, and furthermore medical verification of some evidence of psychiatric symptomatology dates as far back as a private report from October 1991. The July 2005 VA examiner found that the Veteran's PTSD was caused by the inservice trauma when the baby died. The examiner found that the onset of PTSD was soon after the incident of the baby's death. The Board concludes that the weight of the evidence demonstrates that time of his initial claim in 1995, the Veteran was manifesting symptoms of PTSD and that PTSD was incurred in service as a result of the inservice stressor of the death of the baby. Further, the evidence existed to confirm his claimed stressor in the form of the 1986 NIS report. The July 2005 VA examination report includes a competent medical opinion linking the verified stressor to the current diagnosis of PTSD. The award of service connection for the psychiatric disorder was made based on the July 2005 VA examination which relied in part on the service record that existed but was not associated with the record at the time of the initial claim. Based on the foregoing, the Board finds that entitlement to service connection for PTSD arose prior to the Veteran's claim of service connection. As the date of VA's receipt of his initial claim is later, the Board finds that the effective date of an award of service connection for PTSD should correspond to such date. Accordingly, service connection for PTSD is established, effective September 19, 1995. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an effective date of September 19, 1995 for award of service connection for PTSD is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs