Citation Nr: 1333340 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-13 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an effective date prior to August 10, 2004, for the award of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date prior to August 10, 2004, for the award of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to May 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2005 rating decisions of Department of Veterans Affairs (VA) regional offices (ROs). On his March 2009 substantive appeal, the Veteran requested a Board hearing at the central office in Washington, DC. Subsequently, in January 2012, the Veteran requested that the hearing be rescheduled as a Travel Board hearing at the RO in Los Angeles, California. In May 2012, the Board remanded the Veteran's claims so that he could be provided with a Travel Board hearing at the RO in Los Angeles, California. In July 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the RO in Los Angeles, California. A transcript of the proceeding has been associated with the claims file. The Board acknowledges that in June 2011 correspondence, the Veteran's representative wrote that the Veteran was withdrawing and "reopening" "the issue of PTSD." At the same time, however, and in the same correspondence, the representative appears to argue that because a VA psychiatrist noted in a record that treatment for PTSD began in October 2001, the Veteran should be entitled to an earlier effective date for service connection. The Veteran clarified at the Board hearing that he intended to continue his appeal of the effective date issue for his PTSD. In addition, the Board previously remanded the issue in May 2012 for a hearing to be scheduled. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Therefore, the Board finds that the issue of entitlement to an earlier effective date for PTSD remains on appeal before the Board. The Board notes that a May 2002 rating decision denied the Veteran's original claims of entitlement to service connection for PTSD and for entitlement to TDIU. The May 2002 rating decision denied the Veteran's claim for PTSD because there was no evidence corroborating an in-service stressor. Subsequently, on August 10, 2004 (the effective date of his PTSD and TDIU), the Veteran submitted copies of after-action and lessons-learned reports from his unit that corroborated an in-service stressor (based upon which his claim for PTSD was granted). Under 38 C.F.R. § 3.156(c), "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. . . Such 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." Therefore, as service department records relating to the claimed in-service stressor were associated with the claims file after the issuance of the May 2002 rating decision, the Veteran's claim for PTSD relates back to the time of his original claim that was denied by way of the May 2002 rating decision. Finally, while the Board acknowledges that the Veteran has asserted clear and unmistakable error in the May 2002 rating decision in the context of his earlier effective date claims, because reconsideration of the previously denied claims, and a finding of clear and unmistakable error in that same rating decision, essentially serves the same purpose, the Board finds that its determination that the claims must be reconsidered under 38 C.F.R. § 3.156(c) renders the Veteran's claim for revision on the basis of clear and unmistakable error moot. Because the Veteran's claims for PTSD and TDIU relate back to the time of his original claim that was denied by way of the May 2002 rating decision, the earliest effective date for his PTSD and TDIU would be either the date entitlement arose or the date VA received the original claim that was denied in May 2002, whichever is later. See 38 C.F.R. § 3.400 (2013). The issue of entitlement to a disability rating in excess of 10 percent disabling for a left knee strain has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. See Board Hearing Transcript. The issue of entitlement to an effective date prior to August 10, 2004, for the award of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT On February 7, 2002, the Veteran filed a claim for entitlement to service connection for PTSD, and the RO thereafter awarded service connection for PTSD; no communications dated prior to February 7, 2002 relating to the Veteran's PTSD or any other psychiatric disorder are of record. CONCLUSIONS OF LAW The criteria for an effective date of February 7, 2002 for the award of service connection for PTSD have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). The criteria for an effective date prior to February 7, 2002 for the award of service connection for PTSD have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's earlier effective date claim for service connection for PTSD, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). For effective date claims, where service connection has been granted and the claimant has appealed the effective date, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the effective date does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to notice is nonprejudicial. See Dingess, 19 Vet. App. at 490- 491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, No. 05-876 (U.S. Vet. App. May 19, 2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Nevertheless, July 2006 and September 2011 letters informed the Veteran of how to substantiate claims for service connection and explained how VA assigns disability ratings and effective dates. The Board also concludes that VA's duty to assist has been satisfied. The Veteran's relevant VA and private treatment records have been associated with the claims file. The Veteran has not identified any outstanding relevant evidence. II. Analysis 38 U.S.C.A. § 5110(a) provides that "the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." See also Sears v. Principi, 16 Vet. App. 244 (2002). Similarly, 38 C.F.R. § 3.400(b)(2) provides that for disability compensation for direct service connection, the effective date is the "[d]ay following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later." Likewise, with regard to applications to reopen finally disallowed claims, 38 C.F.R. § 3.400(q)(2) provides that the effective date of an award will be the date of receipt of the new claim or the date entitlement arose, whichever is later. With regard to informal claims, VA is generally required to send a formal application to the veteran, and if the completed form is received by VA within one year from the date it was sent to the veteran, then the claim will be considered filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155(a) (2012); Servello v. Derwinski, 3 Vet. App. 196, 200-201 (1992). "Any communication or action indicating an intent to apply for one or more benefits under the laws administered by [VA] ... may be considered an informal claim. Such informal claim must identify the benefit sought." 38 C.F.R. § 3.155(a) (2012). "The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit." Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). The Board notes that revisions were made to 38 C.F.R. §§ 3.156(c) and 3.400(q), effective on October 6, 2006. 38 C.F.R. § 3.156(c) was revised to establish clearer rules regarding reconsideration of decisions on the basis of newly discovered service department records. The substance of 38 C.F.R. § 3.400(q)(2) is now included in the revised 38 C.F.R. § 3.156(c). Prior to the revision, 38 C.F.R. § 3.400(q)(2) governed the effective date of benefits awarded when VA reconsidered a claim based on newly discovered service department records. The prior § 3.400(q)(1) is redesignated as new § 3.400(q)(1) and (2) without substantive change. See 70 Fed. Reg. 35388 (2005). As in effect prior to October 6, 2006, 38 C.F.R. § 3.156(c) and 38 C.F.R. § 3.400(q)(2), together establish an exception to the general effective date rule in § 3.400 which provides that the effective date of an award of benefits will be the date of claim or the date entitlement arose, whichever is later. The exception applies when VA receives official service department records that were unavailable at the time that VA previously decided a claim for a benefit and those records lead VA to award a benefit that was not granted in the previous decision. Under this exception, the effective date of such an award may relate back to the decision of the original claim or date entitlement arose, whichever is later, even though the decision on that claim may be final under § 3.104. As noted above, § 3.156(c) was revised to clarify VA's current practice that when VA receives service department records that were unavailable at the time of the prior decision, VA may reconsider the prior decision, and the effective date assigned will relate back to the date of the original claim, or the date entitlement arose, whichever is later. The pertinent revisions include removal of the "new and material" requirement in § 3.156(c). Because the rule regarding the effective date of an award of benefits based all or in part on newly-discovered service department records is now included in § 3.156(c), the effective date provision was removed from § 3.400(q). Effective on or after October 6, 2006, 38 C.F.R. § 3.156(c) provides that notwithstanding any other section in this part, 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 paragraph (a) of this section. 38 C.F.R. § 3.156(c)(1). An award made based all or in part on the records identified by paragraph (c)(1) is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. See 38 C.F.R. § 3.156(c)(3) (2013). A March 2005 rating decision granted entitlement to service connection for PTSD (and to TDIU) and assigned an effective date of August 10, 2004. The Veteran claims entitlement to an earlier effective date for service connection. The Veteran filed an original claim for entitlement to service connection for PTSD on February 7, 2002. The Veteran alleged that he experienced rocket, mortar, and small arms fire from the enemy while serving in Qui Nhon, Vietnam, and that on one occasion, a rocket blast threw him 15 to 20 feet and against a wall locker. Prior to February 7, 2002, there is no correspondence in the claims file relating to any claimed PTSD or other psychiatric disorder. A May 2002 rating decision denied entitlement to service connection for PTSD based on the lack of a corroborated in-service stressor. An April 2003 rating decision continued the denial of the Veteran's PTSD claim. On August 10, 2004, the Veteran submitted copies of after action reports and lessons learned from his unit reflecting that it was attacked by enemy fire, including the barracks. A March 2005 rating decision granted service connection for PTSD. He testified during the Board hearing that an earlier effective date is warranted as treating clinicians indicated that he had PTSD in October 2001. With respect to the Board hearing, the Court of Appeals for Veterans Claims held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ noted the current appellate issues at the beginning of the hearing and asked questions to clarify the Veteran's contentions. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. As noted in the introduction above, 38 C.F.R. § 3.156(c) provides that "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." As service department records from the Veteran's unit relating to his in-service stressor were associated with the claims file after the issuance of the May 2002 rating decision, the Veteran's claim for PTSD relates back to the time of his original claim that was denied by way of the May 2002 rating decision. In this case, the Veteran separated from service in May 1969, and the earliest correspondence from the Veteran in the claims file relating to his claims for PTSD (or any psychiatric disorder) bears a stamped received date of February 7, 2002, over one year since his separation from service. As noted above, under 38 C.F.R. § 3.400(b)(2), for service connection claims filed within one year of service, the effective date is the day following separation from active service or the date entitlement arose; otherwise, the date of receipt of the claim, or the date entitlement arose, whichever is later." See also 38 U.S.C.A. § 5110(a). Therefore, as the Veteran filed his claim for service connection for PTSD on February 7, 2002, the Board finds that the evidence is in favor of granting entitlement to an earlier effective date of February 7, 2002 for the award of service connection for PTSD. With regard to whether the Veteran may be entitled to an effective date prior to February 7, 2002 for his PTSD, the Board has considered whether an informal claim was filed prior to that date. There is no correspondence in the entire claims file, however, relating to any claimed PTSD or other psychiatric disorder prior to February 7, 2002. In this regard, the Board acknowledges that the Veteran has alleged that he filed his claim in 2001, and, in that regard, the claims file contains a June 2001 claim, albeit for an increased rating for his service-connected left knee disability, not for PTSD or any other psychiatric disorder. The Board acknowledges that a June 2003 letter from Dr. H.G. of a VA medical center reflects that he wrote that the Veteran had been treated for diagnosed PTSD since October 1, 2001, and that other letters from VA clinicians reflect that the Veteran had symptomatology since September 11, 2001. See Board Hearing Transcript at 5. The Board emphasizes, however, that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA."). See Lalonde v. West, 12 Vet. App. 377, 382 (1999). In other words, while the Board acknowledges that the Veteran has been noted as having diagnosed PTSD since 2001, the earliest effective date is the later date that his claim was filed, not the earliest date of symptoms or diagnosis shown in the medical evidence. Similarly, the Board acknowledges that VA treatment records reflecting diagnosed PTSD were constructively of record prior to the filing of his claims in February 2002. See Bell v. Derwinski, 2 Vet .App. 611, 613 (1992) (holding that VA-generated documents in the possession of the Secretary at the time of the Board decision are constructively part of the record of proceedings, as mandated by 38 U.S.C.A. § 7252(b)). The existence of medical records alone, however, generally cannot be construed as an informal claim. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006); cf. 38 C.F.R. § 3.157 (2012). Therefore, in light of all of the above, the Board finds that the earliest possible effective date of service connection for the Veteran's PTSD is February 7, 2002, the date of receipt of the informal claim. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an effective date of February 7, 2002, for the award of service connection for PTSD is granted. Entitlement to an effective date prior to February 7, 2002, for the award of service connection for PTSD is denied. REMAND A March 2005 rating decision granted entitlement to TDIU and assigned an effective date of August 10, 2004. The Veteran claims entitlement to an earlier effective date. The Veteran filed an original claim for entitlement to TDIU (based on PTSD) on February 7, 2002, which was denied by way of a May 2002 rating decision (which also denied PTSD and was reconsidered herein in granting the earlier effective date for PTSD). As noted above, on August 10, 2004, the Veteran submitted copies of unit records in support of his claim for PTSD, based upon which his PTSD claim was granted by way of a March 2005 rating decision. A separate March 2005 rating decision granted entitlement to TDIU, and assigned an effective date of August 10, 2004. In this case, the Veteran's claim for TDIU was part of his underlying February 2002 claim for PTSD, and therefore it relates back to the PTSD claim that was denied by way of the May 2002 rating decision. See Mayhue v. Shinseki, 24 Vet.App. 273, 281 (2011). For the reasons explained above regarding his earlier effective date claim for PTSD, that May 2002 rating decision will be reconsidered herein because service department records were subsequently associated with the claims file. 38 C.F.R. § 3.156(c) (2013). Although the Board will reconsider the Veteran's TDIU claim that was denied by way of the May 2002 rating decision, at this time, the Veteran's combined disability rating is only 10 percent prior to August 10, 2004, and 70 percent thereafter based on his PTSD. Therefore, prior to August 10, 2004, the current effective date for TDIU on appeal, the Veteran does not meet the schedular criteria for assignment of TDIU. See 38 C.F.R. § 4.16(a) (2013). At the same time, however, based on the Board's grant of entitlement to an earlier effective date of February 7, 2002 for service connection for PTSD, the Board finds that it would be premature to decide the Veteran's earlier effective date claim for TDIU until a rating for the Veteran's PTSD prior to August 10, 2004 has been assigned. Therefore, a decision on the claim for an earlier effective date for TDIU is deferred. Accordingly, the case is REMANDED for the following action: After ratings have been assigned for the Veteran's PTSD for the period from February 7, 2002 to August 9, 2004, readjudicate the issue of entitlement to an effective date prior to August 10, 2004 for the award of TDIU (noting that the May 2002 rating decision is being reconsidered due to new service department records). If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matters 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). ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs