Citation Nr: 1502091	
Decision Date: 01/15/15    Archive Date: 01/27/15

DOCKET NO.  12-30 537	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas


THE ISSUES

1.  Entitlement to an effective date prior to August 19, 2008, for posttraumatic stress disorder (PTSD).

2.  Entitlement to an effective date prior to August 19, 2008, for total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Kenneth M. Carpenter, Attorney


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel


INTRODUCTION

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

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, that granted service connection for PTSD and entitlement to a TDIU, both effective August 19, 2008.

The issue of competency was explicitly raised in a July 2012 submission from the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014). 

The issues of entitlement to an effective date prior to October 13, 1989, and entitlement to an effective date prior to August 19, 2008, for TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  The Veteran separated from service in August 1971.

2.  The Veteran's original claim for service connection for PTSD was filed on August 4, 1989.

3.  The earliest medical diagnosis of PTSD in the claims file is dated October 13, 1989.

4.  The Veteran was first denied entitlement to service connection for PTSD in a rating decision issued in January 1990.

5.  In a November 2010 rating decision the RO granted entitlement to service connection for PTSD, effective August 19, 2008, based upon newly associated service records corroborating the Veteran's reported stressors.

6.  At the time of the January 1990 rating decision became final, the service records corroborating the Veteran's reported stressors were not of record.


CONCLUSION OF LAW

The criteria for an effective date of October 13, 1989, for the award of service connection for PTSD are met.  38 U.S.C.A. §§ 1154(a), 5107(b), 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.156(c), 3.400 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran argues that an earlier effective date is warranted for service connection for his PTSD.  He contends the proper date is August 16, 1988, because he states this is when he originally filed a service connection claim for PTSD.

The Veteran filed a claim on August 16, 1988, but it was for the disability of paranoid schizophrenia and not for PTSD.  The original claim for PTSD was received on August 4, 1989, when the Veteran submitted a request to amend his claim and add the issue of PTSD.  The Veteran was subsequently denied entitlement to service connection for PTSD in a January 1990 rating decision.  

In a November 2010 rating decision the RO granted entitlement to service connection for PTSD, based upon a letter from the Department of the Army Joint Services Records Research Center (JSRRC).  The letter was associated with the claims file in April 2010.  This letter corroborated two of the Veteran's reported stressors.  Specifically, it was confirmed that while the Veteran was stationed at Cu Chi in the Republic of Vietnam, the battalion "received a rocket attack" and "received a mortar attack."  

The September 2012 statement of the case (SOC) states that the Veteran's claim had been previously denied because there had been no verified stressor.  In describing the reason the Veteran's claim was granted, the SOC used language paralleling that of the JSRRC letter: "Your statement about being attacked with mortar fire while you were in Vietnam is consistent with the circumstances of your service in Vietnam."  Thus the PTSD claim was granted in November 2010 because stressors were corroborated by the JSRRC letter.

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).  Accordingly, the Board finds that the January 1990 decision did not become final, as the April 2010 letter documenting the JSRRC's corroboration of the Veteran's in-service PTSD stressors qualifies as an "official service department record."  See Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the regulation requiring VA to reconsider a claim when it receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when the claim was first decided is applicable to unit records provided to the RO by the U.S. Armed Services Center for Research of Unit Records).  

In light of the foregoing, the Veteran's claim may be viewed as stemming from the date of his original claim of service connection for PTSD, which was filed with VA on August 4, 1989.  The effective date for the grant of service connection based upon an original claim, as has been determined to be the case here, is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b).

Because the Veteran's claim was received more than one year after his separation from service, the effective date can be no earlier than the date of receipt of the claim or the date entitlement arose, whichever is later.

The date of receipt of the claim for PTSD is August 4, 1989.  The date entitlement arose is October 13, 1989, the date of the VA treatment record in which the first medical diagnosis of PTSD appears.  The Board acknowledges that earlier documents mention PTSD but only "by history."  A medical diagnosis of PTSD is needed to support a grant of service connection.  See Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014) (service connection for PTSD requires medical evidence diagnosing the condition).  Thus, the October 13, 1989 record showing the first medical diagnosis of PTSD establishes entitlement.

Thus, the date entitlement arose is the later date and is the proper effective date.


ORDER

Subject to the law and regulations governing payment of monetary benefits, an effective date of October 13, 1989, for the award of service connection of PTSD is granted.


REMAND

The Veteran has evidence of PTSD symptoms prior to October 13, 1989, including mention of PTSD "by history."  (See treatment records dated February 1989 and September 1989.)  A February 1989 treatment record also states that in 1984 Vet Center personnel suggested he may have PTSD.  A July 1989 treatment record from the Vet Center discusses many symptoms commonly associated with PTSD.  As a medical diagnosis of PTSD is needed to support a grant of service connection, the Board finds that a remand is necessary to obtain a retrospective medical opinion to determine whether the Veteran had an onset date prior to October 13, 1989, for PTSD.  See Young, 766 F.3d 1348; see also Vigil, 22 Vet. App. 63 (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation).  

The Veteran contends that he is also entitled to an effective date prior to August 19, 2008, for entitlement to a TDIU.  In this decision, the Board has granted an earlier effective date for PTSD.  The AOJ must assign a disability rating for the period from October 13, 1989 to August 19, 2008, in the first instance.  Such assignment may impact whether the Veteran satisfies the schedular requirements for a TDIU rating as set forth in 38 C.F.R. § 4.16(a) during that period.  Thus, a decision by the Board on the Veteran's TDIU claim under 38 C.F.R. § 4.16(a) would, at this point, be premature.  See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim.).

Accordingly, the case is REMANDED for the following actions:

1.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge and/or were contemporaneously informed of the onset and severity of his PTSD symptoms, including their effect on his ability to work.  Provide an appropriate amount of time to submit this lay evidence.

2.  Ask the Veteran to identify any outstanding treatment records, including any Vet Center who treated him for psychiatric symptoms prior to October 1989.  After securing any necessary releases, attempt to obtain any identified outstanding treatment records, physically or electronically.

3.  After completing the above and associating any new evidence with the claims file, obtain a retrospective opinion from an appropriate VA clinician as to whether the Veteran's PTSD had its onset before October 13, 1989.  The claims file must be made available to the clinician.  

In providing this opinion, the reviewing clinician is asked to consider the April 2010 JSRRC letter that corroborates the Veteran's PTSD stressors and the Veteran's psychiatric history.  All findings, along with a fully articulated medical rationale for all opinions expressed, should be set forth in the opinion.

4.  Then readjudicate the appeal.  In assigning the evaluation for PTSD, the AOJ must consider the criteria for evaluating psychiatric disability in effect on October 13, 1989, including 38 C.F.R. § 4.16(c), as well as that which became effective November 7, 1996.

If any benefit sought on appeal is not granted in full, furnish a supplemental statement of the case and an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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 2014).



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs