Citation Nr: 1333602 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-45 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date prior to January 21, 2004 for a grant of service connection for posttraumatic stress disorder (PTSD), to include as due to clear and unmistakable error in January 1993 and September 2005 rating decisions. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active military duty from November 1966 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The case was previously before the Board in January 2012, at which time the Board allowed the Veteran's effective date for PTSD to be January 21, 2004, from July 25, 2008. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (hereinafter referred to as "the Court"). In a Memorandum Decision dated April 2013, the Court vacated the Board's decision concerning the issue and remanded the matter. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Here, service department records, Air Force historical records showing attacks at Tan Son Nhut Air Base, were associated with the claims file in 2008. The records are relevant because they document attacks at the Air Base while the Veteran was stationed there, thus verifying one of the stressors he alleged in his original June 1992 claim. It is that stressor upon which the RO granted service connection in 2008. These records were in existence at the time of the Veteran's claim because they were created in 1979. Additionally, the Veteran provided sufficient information for VA to identify and obtain the records at the time of the original June 1992 claim because the claims file contained his allegations of rocket attacks at Tan Son Nhut Air Base and contained service personnel records which indicated the dates he was stationed at Tan Son Nhut, Vietnam. Thus, upon receipt of these records in 2008, the RO should have reconsidered the Veteran's claim, rather than requiring the submission of new and material evidence. A grant of service connection based on reconsideration of a claim creates a substantially different effective date than a grant of service connection based on claim reopened by the submission of new and material evidence. The effective date for a claim granted based on the submission of new and material evidence is the later of the date of the claim to reopen and the date of entitlement. 38 C.F.R. § 3.400(q). The effective date for a claim granted based on reconsideration is the later of the date of the previously decided claim and the date that entitlement arose. 38 C.F.R. § 3.156(c)(3). Thus, the applicable date of claim is June 19, 1992, the date the Veteran filed his original claim for entitlement to service connection for PTSD. The date of entitlement is the date that all the requirements of entitlement to service connection for PTSD were met. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a) (2013). A diagnosis of PTSD was first made in a private medical record dated in March 1990. But a diagnosis of PTSD based on an inservice stressor was not made until a January 21, 2004 VA medical record. In that record, the Veteran reported rocket attacks and the diagnosis was made based on his reported events. The March 1990 private medical record did not provide any information regarding the stressor upon which the PTSD diagnosis was based. The Court vacated and remanded the prior Board decision in order to 1) request the authors of the private records (from the Veteran's March 1990 hospital stay for drug and alcohol abuse at Coral Reef Hospital) to determine what stressor the PTSD diagnosis was based; and 2) obtain a medical opinion from a VA examiner to determine the onset date of the Veteran's PTSD due to his in-service stressor. Thus, the claim is remanded for such development. Accordingly, the case is REMANDED for the following action: 1. Request a determination from the authors (Dr. LA and Dr. BS) of the opinions from the Veteran's March 1990 hospitalization which indicated the Veteran had PTSD as to 1) what the stressor he based his diagnosis of PTSD for the Veteran and 2) an analysis under the DSM concerning the requisite criteria for the diagnosis. Send the request to the physicians at the last known place of employment, Coral Reef Hospital. If no response is received after two attempts at reaching the physicians, inform the Veteran. 2. Obtain an opinion from a VA examiner as to when the Veteran's PTSD first manifested based on a review of the claims file. The examiner should make this determination using criteria found in the DSM to include the consideration of any relevant stressor information found in the claims file. 3. Thereafter, the claim should be readjudicated. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter or 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. 2013). _________________________________________________ J.A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).