Citation Nr: 1329771 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 09-06 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than May 21, 2001 for service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than May 21, 2001 for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Matthew D. Hill, Attorney ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from November 1951 to November 1955. This matter comes before the Board of Veterans' Appeals (Board) from November 2006 and April 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for PTSD and entitlement to TDIU, respectively, both effective as of May 21, 2001. The Board denied the Veteran's claim for entitlement to an effective date earlier than May 21, 2001 for a TDIU due to service-connected disabilities in an April 2010 decision. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a January 2012 Memorandum Decision, the Court reversed, set aside and remanded the Board's April 2010 decision. The Board then remanded the Veteran's claims in September 2012. The issues of entitlement to special monthly compensation (SMC) with aid and attendance have been raised by the record in a March 2013 letter, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to an effective date earlier than May 21, 2001 for a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran submitted a claim of service connection for chronic anxiety syndrome on September 4, 1979. 2. In a November 1979 rating decision, the RO granted entitlement to a non-service-connected (NSC) pension, but did not adjudicate the claim of entitlement to service connection. The Veteran did not appeal the decision, and new and material evidence was not received within one year of notification of the decision. 3. The Veteran submitted a claim for service connection for post-traumatic stress syndrome, anxiety, stress, and depression on January 28, 1982. 4. In a June 1982 rating decision, the RO denied entitlement to service connection for traumatic stress syndrome. The Veteran did not appeal the decision, and new and material evidence was not received within one year of notification of the decision. 5. The Veteran submitted a claim for service connection for PTSD on May 21, 2001. 6. In July 2005, the RO obtained an August 1953 document from the service department that confirms that the Veteran served in a combat zone during the Korean Conflict. 7. In a November 2006 rating decision, the RO granted service connection for PTSD based in part on the Veteran's August 1953 service department record of service in a combat zone. CONCLUSION OF LAW The criteria for an effective date of September 4, 1979 for the award of service connection for PTSD have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156( c), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board finds that the proper effective date for the grant of service connection for PTSD is September 4, 1979-the date sought by the Veteran in his attorney's July 2012 statement. Therefore, no discussion of VA's duty to notify and assist is necessary. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran seeks to reopen a previously denied claim for an effective date earlier than May 21, 2001, for the grant of service connection for PTSD. Specifically, the Veteran's attorney asserts in a well-reasoned and persuasive memorandum that an effective date in September 1979 is warranted because that is the month in which he filed his initial claim for service connection for a psychiatric disorder. Review of the claims file reveals that the Veteran filed that claim on September 4, 1979. Because VA obtained in July 2005 a service department record dated August 5, 1953, showing that the Veteran served in a combat zone during the Korean Conflict; since that evidence corroborating his stressor was relevant to the RO's decision to grant service connection for PTSD in a November 2006 rating decision; and in light of that service department record, service connection was warranted as of the Veteran's initial September 4, 1979 claim, the Board concurs that September 4, 1979 is the proper effective date for service connection for the Veteran's PTSD. 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, a claim reopened after final disallowance, or a claim for increase will be on 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. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if claim is received within one year after separation from service; otherwise, date of receipt of claim or the date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). When VA receives relevant official service department records that existed and had not been associated with the claims file at the time of a prior final decision, VA will reconsider the prior decision without requiring new and material evidence. 38 C.F.R. § 3.156(c). The Veteran initially submitted an application for benefits, including a claim of service connection for a psychiatric disorder that he characterized as chronic anxiety syndrome, on September 4, 1979. In a November 1979 rating decision, the RO granted entitlement to a non-service-connected (NSC) pension, but did not adjudicate the claim of entitlement to service connection. The Veteran did not appeal the decision, and new and material evidence was not received within one year of notification of the decision. Thus, the September 1979 RO decision would generally be final. 38 U.S.C.A. § 4005(c) (1976); 38 C.F.R. § 19.118, 19.153 (1979); 38 C.F.R. § 3.156(b) (2012). The Board notes that the Veteran subsequently submitted a claim for service connection for post-traumatic stress syndrome, anxiety, stress, and depression on January 28, 1982, which the RO denied in a June 1982 rating decision that likewise generally would be final. The Veteran submitted a claim of service connection for PTSD on May 21, 2001, from which this appeal arises. The RO initially denied the claim in rating decisions dated December 2001, April 2002, December 2002, June 2003, and July 2003. In July 2005, however, VA obtained a service department record from August 1953 verifying that the Veteran had served in a combat zone from December 4, 1952 to August 5, 1953, during the Korean Conflict. In a November 2006 rating decision, the RO's first following the receipt of the August 1953 service department record, granted service connection for PTSD and expressly acknowledged the August 1953 service department record as a basis for the grant of service connection. The Board finds that the August 1953 service department record was relevant to the Veteran's original claim for service connection, as it provided credible supporting evidence that the claimed in-service stressor occurred. In addition, although that record was not associated with the claims file at the time of the November 1979 or June 1982 rating decisions, as a service department record it was constructively of record. Therefore, the Board must reconsider the prior and final November 1979 decision on a de novo basis. See Vigil v. Peake, 22 Vet. App. 63 (2008); see also 38 C.F.R. § 3. 156(c). Additionally, because the relevant service department record was obtained in July 2005, the Board need not reach the question of whether the Veteran provided sufficient information to identify and obtain it pursuant to 38 C.F.R. § 3.156(c)(2), since that regulation did not take effect until October 6, 2006, and is not retroactive. See Cline v. Shinseki, 26 Vet. App. 18 (2012). With the benefit of the August 1953 service department record confirming service in a combat zone during the Korean Conflict, the Board finds that a grant is warranted for the Veteran's September 4, 1979 claim for service connection for a psychiatric disorder that he characterized as chronic anxiety syndrome, and VA now recognizes as PTSD. Specifically, his private physician, Dr. Wooten, diagnosed the Veteran with depression and anxiety and explained that he takes medication for his "emotional symptoms" in a July 1979 letter that accompanied the Veteran's claim. Additional evidence developed pursuant to the Veteran's September 4, 1979 claim includes an October 1979 VA examination in which the examiner diagnosed the Veteran with the psychiatric condition, schizo-affective schizophrenia. Although the diagnosis "PTSD" was not added to the lexicon of the Diagnostic and Statistical Manual of Mental Disorders (DSM) until DSM-III in 1980, the Board finds that the combination of the Veteran's physicians' findings of depression, anxiety, emotional symptoms, and schizo-affective schizophrenia in 1979, when combined with the August 1953 service department record confirming service in a combat zone during the Korean Conflict, are sufficient to warrant a grant of service connection for PTSD. See Velez v. Shinseki, 23 Vet. App. 199 (2009). Additionally, while the Board acknowledges that the October 1979 VA physician examiner characterized the Veteran's claim as being for non-service connected pension, it is within the Board's discretion to interpret VA's own forms. Stewart v. Brown, 10 Vet. App. 15 (1997). Here, because the Veteran gave no indication in his September 1979 claim that he intended to limit its scope to pension, the Board construes the benefit of the doubt as to the nature of the claim in favor of the Veteran. 38 C.F.R. § 3.102. The effective date for the grant of service connection based upon an original claim for service connection, as here, is either the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Since the Veteran filed his claim on September 4, 1979, that is the proper effective date for the grant of service connection. See Vigil v. Peake, 22 Vet. App. 63 (2008); see also 38 C.F.R. § 3. 156(c) (2012). ORDER An effective date of September 4, 1979, and no earlier, for the grant of service connection for PTSD is granted. REMAND In light of the Board's grant of an earlier effective date of September 4, 1979, for service connection for PTSD, on remand, the RO must assign an evaluation for this disability. Furher, in light of the grant of an earlier effective date for the Veteran's PTSD, the Board finds that VA must afford him a VA examination, the report of which must include a retrospective medical opinion addressing the nature and severity of his PTSD since September 4, 1979. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Assign a disability rating (or ratings, as applicable) for the Veteran's PTSD from September 4, 1979. 2. After obtaining any pertinent, outstanding records, the RO must make arrangements with an appropriate VA medical facility for an examination to ascertain the nature and severity of the Veteran's psychiatric disability since September 4, 1979. The claims folder should be made available and reviewed by the examiner and all appropriate tests should be conducted. The examiner must consider the Veteran's lay report as to the nature and severity of his symptoms and the findings and conclusions in the medical records. If possible, the examiner should estimate the Veteran's GAF score(s) during this period. All findings and conclusions should be set forth in a legible report. 3. Thereafter, consider whether a TDIU is warranted as of September 4, 1979, or any time thereafter prior to May 21, 2001. If the claim is not granted in full, issue a supplemental statement of the case to the Veteran and his attorney and provide an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs