Citation Nr: 1338765	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  06-24 051	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an effective date prior to March 24, 2004 for the award of service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Robert V. Chisholm, Esq.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Sonnet Gorham, Counsel

INTRODUCTION

The Veteran served on active duty from July 5, 1978 to September 17, 1980.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

The Veteran testified before the undersigned at a Board hearing in September 2010.  A transcript of this hearing has been associated with his VA claims file.

In a February 2012 decision, the Board denied the Veteran's claim.  The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In a September 2012 Order, the Court vacated and remanded the Board's February 2012 decision and implemented the provisions of a September 2012 Joint Motion for Partial Remand (Joint Motion), which is addressed below. 

The issues of entitlement to increased initial ratings for PTSD and a right foot plantar wart are not yet ripe for review, as they are pending additional development at the agency of original jurisdiction as requested by the Board in its February 2012 remand.


FINDINGS OF FACT

1.  In August 1980, one month prior to his separation from active service, the Veteran filed a claim for an acquired psychiatric disorder, which was denied in an unappealed January 1981 RO decision.

2.  In March 2004, the Veteran submitted a petition to reopen the claim for an acquired psychiatric disorder.

3.  In March 2006, VA received relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim for an acquired psychiatric disorder in January 1981.  Such service department records in part led to the grant of service connection for PTSD.


CONCLUSION OF LAW

The criteria for an effective date of September 18, 1980 for the award of service connection for PTSD are met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156(c), 3.400(b)(2)(i) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Joint Motion states that in addressing the Veteran's entitlement to an earlier effective date for PTSD, the Board failed to account for the implications of 38 C.F.R. § 3.156(c).  Joint Motion at 4.  Paragraph (c)(1) of 38 C.F.R. § 3.156 states that "[a]t any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim."  38 C.F.R. § 3.156(c)(1) (2013) (emphasis added).  Regarding effective dates, the regulation instructs that "[a]n award made based all or in part on the records identified by paragraph (c)(1) of this section 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."  38 C.F.R. § 3.156(c)(3) (2013).

Here, the Veteran first filed a claim for an acquired psychiatric disorder in August 1980, which was denied by the RO in an unappealed January 1981 decision.  In conjunction with a March 2004 petition to reopen this claim, the RO obtained the Veteran's service personnel records, which are marked as "received" on March 20, 2006.  Among these records is a December 1979 Offenses and Punishments report that, according to an April 2007 VA examiner, is demonstrative of behavioral changes substantiating the Veteran's allegation of in-service military sexual trauma.  The RO in part relied upon this report in granting service connection for PTSD in May 2007.

Insofar as the relevant December 1979 service personnel record existed and was not associated with the claims file when VA first decided the Veteran's claim in January 1981, and because the RO utilized that record in awarding benefits, effective date rules relevant to the original August 1980 claim are for application.  Id.  Since that claim was filed within one year of separation, the Veteran is entitled to the earliest effective date available by law, which is the day following separation, or September 18, 1980.  38 C.F.R. § 3.400(b)(2)(i) (2013).


ORDER

An effective date of September 18, 1980 for the award of service connection for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits.



____________________________________________
Donnie R. Hachey
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs