Citation Nr: 1430786	
Decision Date: 07/09/14    Archive Date: 07/15/14

DOCKET NO.  05-17 982	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to an effective date earlier than August 23, 2002, for the grant of service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Joseph R. Moore, Esq.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Lindio, Counsel

INTRODUCTION

The Veteran served on active duty from March 1969 to January 1971, to include service in the Republic of Vietnam.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Detroit, Michigan.  At that time, the RO implemented a grant of service connection for PTSD, effective August 23, 2002, following a 
February 2011 Board decision granting service connection.

The Board notes that, in addition to the paper claims file, the Veteran also has electronic Virtual VA and Veteran Benefits Management System (VBMS) paperless claims files.  A review of the documents in such files reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. 


FINDING OF FACT

Service connection for PTSD ultimately was granted based in part on official service department records confirming an in-service stressor, which existed but had not been associated with the claims file at the time of the August 1997 rating decision first denying this benefit.  Entitlement to service connection is established as of November 14, 1989, when VA received the initial claim for service connection.
      

CONCLUSION OF LAW

An effective date of November 14, 1989, but no earlier, for the grant of service connection for PTSD is warranted. 38 U.S.C.A. §§ 5110, 7104, 7266 (West 2002 & Supp. 2013; 38 C.F.R. §§ 3.156(c), 3.160, 3.304, 3.400, 4.125, 20.1100, 20.1104, 20.1105 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). 

The Board observes that the Veteran has appealed with respect to the propriety of the effective date assigned for the grant of service connection for PTSD.  VA's General Counsel has held that no VCAA notice is required for such a downstream issue. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Board notes that the Court has held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006).  In this case, the RO granted the Veteran's claim for service connection for PTSD and assigned an initial rating of 100 percent, effective August 23, 2002, in the July 2011 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the effective date of the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).  In light of the favorable determination contained herein, further development with regard to VA's duties to notify and assist would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540 (1991).  

II. Earlier Effective Date

In a February 2011 rating decision, RO granted service connection for PTSD, effective August 23, 2002, following the Board's February 2011 grant of service connection.   August 23, 2002 was the date of his most recent claim to reopen.  As the Veteran filed a timely notice of disagreement with the February 2011 rating decision that established the service connection effective date and perfected his appeal, the Board properly has jurisdiction over the effective date issue. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (there is no such thing as a freestanding claim for an earlier effective date).

The determination of the effective date of an award is generally governed by 38 U.S.C.A. § 5110(a), which states that, "[u]nless specifically provided otherwise . . . , the effective date of an award based on an original claim [or] a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."

However, Section 3.156(c) may apply in cases in which VA receives certain records after it has already issued a decision on a claim. Under 38 C.F.R. § 3.156(c)(1), "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 part of the regulation, the Secretary has included a nonexhaustive list of records that could constitute official service department records. Id. However, the applicability of this regulation is tempered by subsection (2), which provides that § 3.156(c) "does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim" or because the claimant did not "provide sufficient information for VA to identify and obtain the records." 38 C.F.R. § 3.156(c)(2). "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." 38 C.F.R. § 3.156(c)(3).

By way of history, the Veteran filed an original claim for service connection for a "nervous condition" on November 14, 1989.  The RO denied that claim in a June 1990 rating decision.  After remanding the matter in June 1992 and November 1993 to attempt to obtain evidence regarding the Veteran's claim, the Board finally denied service connection for PTSD in an August 1997 decision.  

As will be explained below, notwithstanding the finality of the above-mentioned g decision, the Board determines that an earlier effective date is warranted under 38 C.F.R. § 3.156(c) in this case because the Veteran submitted relevant official service department records that existed and had not been associated with the claims file when VA previously decided the claim.

Namely, in August 2008, the Veteran's attorney provided additional service records documenting enemy activity, including explosions, arms and mortar fire, where and when the Veteran was stationed in Vietnam.  Significantly, these service records were not previously part of the claims file at the time of the previous August 1997 Board decision.  Therefore, they fall under the umbrella of newly submitted official service department records referred to in 38 C.F.R. § 3.156(c)(1).

It is clear from a review of the service department records in question that they are relevant to the service connection claim.  In granting service connection in February 2011, the Board determined that there was credible supporting evidence of the claimed in-service stressors.  The Board also found a current diagnosis of PTSD, in a September 2010 report by Dr. M.C.  Also, prior VA examinations, including ones in February 2002 and January 1995 (obtained during the initial adjudication of the service connection claim), similarly determined that the Veteran had PTSD due to various traumas in Vietnam.  

The service department records in question were created while the Veteran was in service, and there is no indication here that these records would not have been obtainable due to a lack of cooperation or identifying information on part of the Veteran. Accordingly, the limiting factors of 38 C.F.R. § 3.156(c)(2) do not apply to his claim to reopen, and he is entitled to the benefit of an earlier effective date under 38 C.F.R. § 3.156(c)(3) with respect to this previously decided claim.

For these reasons, a November 14, 1989 effective date is warranted, the earliest date that can be considered a claim for service connection for a psychiatric disorder.

The Board emphasizes that the actual date that entitlement arose is of no issue in the present case, because even assuming that entitlement to service connection for a psychiatric disorder arose at an earlier time, the law mandates that the effective date shall be "the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c)(3).

In conclusion, the Board finds that the Veteran is entitled to an effective date of November 14, 1989 for the grant of service connection for his PTSD.  


ORDER

A November 14, 1989 effective date for the grant of service connection for PTSD is granted.


____________________________________________
DEBORAH W. SINGLETON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs