Citation Nr: 1505234 Decision Date: 02/04/15 Archive Date: 02/18/15 DOCKET NO. 12-29 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an effective date prior to August 6, 2010, for the grant of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Katrina Eagle, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which reopened the Veteran's claim of entitlement to service connection for PTSD and granted service connection for PTSD, assigning a 30 percent disability rating effective August 6, 2010. As an initial matter, the Board notes that, in his November 2011 Notice of Disagreement, the Veteran disagreed with both the disability rating and the effective date assigned for PTSD. Thereafter, in an August 2012 rating decision and August 2012 Statement of the Case, the RO increased the disability rating assigned for the Veteran's service-connected PTSD to 50 percent, effective August 6, 2010. The August 2012 Statement of the Case also denied entitlement to an effective date prior to August 6, 2010, for the grant of service connection for PTSD. In his October 2012 Substantive Appeal (VA Form 9), the Veteran timely perfected an appeal solely as to the issue of entitlement to an effective date prior to August 6, 2010, for the grant of service connection for PTSD. As such, the issue on appeal is as stated on the cover page. The Board also notes that, in the Veteran's October 2012 Substantive Appeal (VA Form 9), the Veteran's representative reported that the Veteran was in the process of having his DD-214 corrected to accurately reflect his decorations and awards, and as such, requested that the Veteran's case not be transferred to the Board until his DD-214 had been updated. Significantly, in July 2013, VA received a copy of the Veteran's DD-215 (Corrected DD Form 214). In January 2012, the Veteran testified at a hearing at the RO before a Decision Review Officer. A transcript of the hearing has been prepared and associated with the claims file. FINDINGS OF FACT 1. The RO received the Veteran's initial claim of entitlement to service connection for PTSD on September 15, 2003. His claim was denied by rating decisions dated in January 2004 and June 2005, the latter of which became final. 2. The Veteran submitted a petition to reopen his claim of entitlement to service connection for PTSD on August 6, 2010. 3. The RO granted service connection for PTSD in a January 2011 rating decision, and assigned an effective date of August 6, 2010, based on the date of receipt of the Veteran's claim to reopen. 4. The RO's award of service connection for PTSD in the January 2011 rating decision was based, in part, on service department records (namely, official command chronology reports), which verified the Veteran's claimed combat stressor of experiencing heavy rocket and artillery attacks in January 1968 and February 1968. These records had been in existence since 1968 and were declassified in 1980, but were not associated with the Veteran's claims file until September 23, 2010. 5. At the time of the June 2005 rating decision, VA had sufficient information to obtain the service records from the appropriate service department. 5. The date of claim for service connection for PTSD (September 15, 2003) is later than the date entitlement arose for PTSD (September 10, 2003). As such, September 15, 2003, is the proper effective date for the award of service connection for PTSD. CONCLUSION OF LAW The criteria for an effective date of September 15, 2003, for the award of service connection for PTSD have been met. 38 U.S.C.A. §§ 5101(a), 5103, 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.1(p), 3.102, 3.155, 3.156(c), 3.159, 3.304(f), 3.400 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). This claim arises from the Veteran's disagreement with the effective date assigned following the grant of service connection. Because service connection was granted, the claim is substantiated and no additional notice is required. Rather, any defect in the notice is deemed not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Regarding the duty to assist, as will be discussed in greater detail below, the Board is awarding an earlier effective date of September 15, 2003, for the grant of service connection for PTSD. This date corresponds to the earliest document of record raising a claim of entitlement to service connection for PTSD, and the Veteran has acknowledged during the course of this appeal that this is the date of his original claim. See, e.g., November 2011 Notice of Disagreement and October 2012 VA Form 9. Under these circumstances, and as the original claim was received more than one year following the date of his separation from service in June 1970, there is no possibility that any additional development would aid the Veteran in establishing entitlement to an effective date prior to September 15, 2003. 38 U.S.C.A. §§ 5103, 5103A (West 2014); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). As such, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duties to notify and assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz, supra; see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Veteran contends that the effective date for the grant of service connection for PTSD should be September 15, 2003, the date of his initial service connection claim. See November 2011 Notice of Disagreement and October 2012 VA Form 9. For background, the Veteran initially filed a claim of entitlement to service connection for PTSD on September 15, 2003, accompanied by a private psychiatric evaluation showing that he had been diagnosed with PTSD based on his combat experiences in Vietnam. Portions of the Veteran's personnel file showing unit of assignment, dates of assignment, and participation in numerous operations in Vietnam were of record. The claim was denied in a February 2004 rating decision on the basis that there was no evidence of a verified in-service stressor event. In November 2004, the Veteran submitted a PTSD questionnaire, wherein he described his stressors as "heavy rocket and artillery attack in January of 1968 at Dong Ha, Vietnam...this was the Tet offensive by the North Vietnamese." The Veteran also provided a date range of January 1968 to April 1968 and his unit of assignment, Headquarters Company, 4th Marines, 3rd Marine Division. Thereafter, in a June 2005 rating decision, the RO continued the denial of service connection for PTSD, based on a finding that there was insufficient information to verify the Veteran's reported stressor. The Veteran was notified of the June 2005 rating decision and his appellate rights by a letter dated June 13, 2005; however, he did not appeal and no new and material evidence was associated with the claims file during the one year appeal period. Therefore, the June 2005 rating decision became final. See 38 U.S.C.A. §§ 5103, 7105(c) (West 2014); 38 C.F.R. § 20.1103 (2014). In August 2010, the Veteran filed a petition to reopen the claim of entitlement to service connection for PTSD, along with more detailed information regarding his reported in-service stressor events, including statements, photographs, and most significantly, official command chronology reports that corroborated the Veteran's account of heavy mortar and rocket attacks at the base on which his unit was assigned in January 1968 and February 1968. This evidence, coupled with an October 2010 VA examiner's opinion linking the Veteran's PTSD to these stressors, led to a January 2011 rating decision in which the RO (1) determined that new and material evidence had been received to reopen the Veteran's claim, and (2) granted service connection for PTSD, effective August 6, 2010, the date of the Veteran's petition to reopen his previously denied PTSD claim. See January 4, 2011 rating decision (noting that the VA examiner provided an Axis I psychiatric diagnosis of PTSD that is directly related to the in-service stressors that are consistent with the places, types, and circumstances of the Veteran's service). In this regard, the RO noted that the evidence relied upon in its January 2011 rating decision included the Veteran's copy of military personnel records dated from October 1, 1967, to March 13, 1968. Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final disallowance shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). Significantly, however, under 38 C.F.R. § 3.156(c), if at any time after VA issues a decision on a claim, 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; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(1). This exception does not apply to records that could not have been obtained at the time of the finally adjudicated claim at issue from the U.S. Army and Joint Services Records Research Center if the Veteran at that time failed to provide sufficient information for VA to identify and obtain such records. 38 C.F.R. § 3.156(c)(2). An award made based all or in part on the records identified by 38 C.F.R. § 3.156(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. 38 C.F.R. § 3.156(c)(3). In this sense, the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted. See Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008). Notably, the United States Court of Appeals of the Federal Circuit (Federal Circuit) has recently clarified that "Section 3.156(c) only applies 'when VA receives official service department records that were unavailable at the time that VA previously decided a claim for benefits and those records lead VA to award a benefit that was not granted in the previous decision.' New and Material Evidence, 70 Fed. Reg. at 35,388 (emphasis added)." Blubaugh v. McDonald, No. 2013-7119, 2014 WL 6890619, at 4 (Fed. Cir. Dec. 9, 2014). The Board finds that the Veteran is entitled to an effective date of September 15, 2003, for the grant of service connection for PTSD. In making this determination, the Board highlights that the command chronology reports submitted by the Veteran in September 2010 constitute relevant official service department records that existed and had not been associated with the claims file when the RO denied the Veteran's claim for entitlement to service connection for PTSD in June 2005. Moreover, insofar as the records were declassified in 1980, they were not classified when the RO decided the Veteran's claim in June 2005. The Board has considered whether the Veteran failed to provide sufficient information for VA to identify and obtain the service department records, such that 38 C.F.R. § 3.156(c) would not apply. See 38 C.F.R. § 3.156(c)(2). In the present case, it is undisputed that the Veteran's PTSD claim was denied in June 2005 for lack of a verifiable, in-service stressor, and that at the time of the June 2005 decision, VA had before it the Veteran's dates of service in Vietnam, his unit information, and a detailed listing of the locations of his unit on specific dates. In this regard, the Veteran provided a statement in November 2004 that he was subjected to heavy rocket and artillery fire while he was assigned to Headquarters Company, 4th Marines, 3rd Marine Division at Dong Ha, Pha Bai, Vietnam in January 1968, during the Tet Offensive, and that such heavy rocket and artillery fire continued until April 1968. Moreover, the service personnel records that were associated with the claims file at the time of the June 2005 rating decision confirmed that the Veteran served in Vietnam with Headquarters Company, 4th Marines, 3rd Marine Division from April 1967 to April 1968 and that he participated in fifteen different operations during that time, including operations at Camp Carroll, Quang Tri Province, from January 1968 to April 1968. The Board thus finds that the RO had sufficient information in 2005 to identify and obtain the relevant command chronology reports. Insofar as these service department records existed and were not associated with the claims file when VA decided the Veteran's claim in June 2005, and because the RO utilized that record, at least in part, in awarding benefits, effective date rules relevant to the original September 2003 claim are for application. 38 C.F.R. § 3.156(c)(3); see also Blubaugh, supra. With regard to the date of claim, as noted above, the Veteran contends that the effective date for the grant of service connection for PTSD should be September 15, 2003, the date of his initial service connection claim. See November 2011 Notice of Disagreement and October 2012 VA Form 9. In this regard, the Board emphasizes that the claims folder contains no other communication from the Veteran or his representative indicating an intent to seek, or a belief in entitlement to, service connection for PTSD between the time of his discharge from service in June 1970 until September 15, 2003, when he submitted his original service connection claim. See 38 C.F.R. §§ 3.1(p), 3.155(a); Lalonde v. West, 12 Vet. App. 377, 382 (1999). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). As such, insofar as the record reflects that the Veteran's original claim for service connection for PTSD was received by the RO on September 15, 2003, more than one year after his separation from service in June 1970, and because the record fails to reveal any communication filed prior to that date that could be construed as a formal or informal claim for this specific benefit, the Board finds that the proper date of claim is the date that the earliest formal claim for service connection for PTSD was received-namely, September 15, 2003. With regard to the date of entitlement, the term "date entitlement arose" is determined on a "facts found" basis. See 38 U.S.C.A. § 5110(a) (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 McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45, 55 (2011). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the Agency of Original Jurisdiction receives the evidence, but rather, is the date to which that evidence refers. McGrath, supra. The date of entitlement in the present case is based on the legal requirements for PTSD, which include (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in service stressor. 38 C.F.R. § 3.304(f). In this case, in a September 10, 2003, medical opinion, Dr. C.A.C. diagnosed the Veteran with PTSD pursuant to the Diagnostic and Statistical Manual of the American Psychiatry Association, Fourth Edition (DSM-IV) and provided the opinion that this disability resulted directly from the Veteran's combat experience in Vietnam. This provides medical evidence of a link between the Veteran's PTSD and the claimed in-service stressor. 38 C.F.R. § 3.304(f). As such, the criteria for entitlement to service connection for PTSD were arguably met as early as September 10, 2003. Pursuant to 38 C.F.R. § 3.156(c)(3), an award made based all or in part on the records identified by 38 C.F.R. § 3.156(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. Here, the date of claim (i.e., September 15, 2003), is later than the date entitlement arose (i.e., September 10, 2003). Thus, the Board finds that service connection for PTSD should be granted from the date of the Veteran's September 15, 2003, claim. See id. Accordingly, the Board concludes that September 15, 2003, is the proper effective date for the award of service connection for PTSD. 38 U.S.C.A. § 5107(b). ORDER An effective date of September 15, 2003, for the grant of service connection for PTSD is granted. ____________________________________________ NICOLE KLASSEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs