Citation Nr: 1605796 Decision Date: 02/16/16 Archive Date: 03/01/16 DOCKET NO. 04 12-237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to an effective date earlier than June 23, 1982, for the grant of service connection for posttraumatic headaches. ATTORNEY FOR THE BOARD B. Muetzel, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1975 to June 1976. These matters come before the Board of Veterans Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), in San Juan, Puerto Rico. The issue of entitlement to an effective date earlier than June 23, 1982, for the grant of service connection for posttraumatic headaches was denied in a March 2001 rating decision. The Board remanded the claim in June 2009. The issue of entitlement to service connection for an acquired psychiatric disorder arises from a September 2004 rating decision, which declined to reopen the previously-denied claim of service connection for PTSD. In June 2005, the Board remanded the claim. Then, the Board remanded the claim in October 2006 and June 2009. Next, with regard to his claim of entitlement to an effective date earlier than June 23, 1982, for the grant of service connection for posttraumatic headaches, the Board notes that the Veteran requested a video hearing in his March 2010 VA Form 9. The Veteran was sent a notification of his scheduled hearing in November 2012. Then, in January 2013, the Veteran's attorney, who represents him on another matter, submitted a statement indicating the Veteran withdrew his request for a hearing. However, the Board recognizes that the Veteran indicated his desire for a video conference hearing in his VA Form 9 Substantive Appeal for his claim for an effective date earlier than June 23, 1982 for the grant of service connection for posttraumatic headaches. The Veteran's attorney is not his representative for this issue, and as such, the withdrawal is invalid. In October 2015, the Veteran was contacted and he clarified that he did not request a hearing with regard to this issue. As such, the request is deemed withdrawn. See 38 C.F.R. § 20.704 (2015). The issue of entitlement to an effective date earlier than June 24, 2003 for the grant of service connection for a low back disorder, to include degenerative disc disease of the lumbosacral spine has been raised by the record in a July 2014 statement, 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). FINDINGS OF FACT 1. After resolving all reasonable doubt in the Veteran's favor, his acquired psychiatric disorder has been related to his period of active service. 2. The Veteran's claim of service connection for post-traumatic headaches with migraine features was first received on June 23, 1982, more than one year after his separation from service. Service connection was granted, effective June 23, 1982. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder have been met. 38 U.S.C.A. §§ 1110, 1154(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.303 (2015). 2. The criteria for an effective date earlier than June 23, 1982, for the award of service connection for post-traumatic headaches with migraine features have not met. 38 U.S.C.A. § 1115 (West 2014); 38 C.F.R. §§ 3.4, 3.401, 3.651 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. As the Board's decision to grant service connection for an acquired psychiatric disorder, is completely favorable, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. With regard to the Veteran's claim for an earlier effective date for the grant of service connection for post-traumatic headaches with migraine features, the Board has denied the claim as a matter of law. The facts are not in dispute. In cases where the law, and not the evidence, is dispositive, the VCAA is not for application. Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 2-2004 (March 9, 2004). As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing and specifically discussed the basis of the prior determination, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and he has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. In sum, based on a review of the claims file, the Board finds there is no indication in the record that any additional evidence relevant to the issue to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duties to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. II. Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A. Service connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). In order to establish service connection, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service (i.e., the nexus requirement). See, Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When considering evidence supporting a claim of service connection, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (reiterating that "'[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.'") (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The Veteran was involved in a motor vehicle accident while serving on active duty in 1976, and he essentially contends that his current acquired psychiatric disorder is related to service to include the motor vehicle accident he was involved in while on active duty. In this case, throughout the course of his appeal, the Veteran's acquired psychiatric disorder has been variously diagnosed as major depression with psychotic features; chronic paranoid schizophrenia; posttraumatic stress disorder (PTSD); schizophrenia, chronic residual type; and severe recurrent major depressive disorder and psychosis. As such, he has a current diagnosis. The Veteran has been afforded several VA examinations throughout his appeal period, including VA examinations dated August 2004, February 2007, and February 2010. Each of the VA examiners opined that the Veteran's current acquired psychiatric disorder is unrelated to service. The Veteran has also submitted several private treatment reports dating back to at least June 2003 in which he has sought treatment for his acquired psychiatric disorder. In May 2005, a private treatment record indicates that the Veteran complained of tension, anxiety, sadness, frequent crying spells, poor memory, depressed mood, easy irritability, memories, and flashbacks of the accident where he lost his fellow soldiers and injured his back. The physician stated that the history and overall picture reveals that the Veteran has "suffered severe trauma from war experience where he developed his emotional condition." A July 2005 private treatment record indicates that the Veteran has experienced depressed mood, nightmares, and anxiety since the vehicle accident the Veteran experienced in 1976. The physician stated that the Veteran's present medical and emotional conditions "seem significantly related to his combat experiences and critical incident." Additionally, an April 2008 private treatment record indicates that the Veteran began developing a gradual deterioration of his mental faculties after the vehicle accident. In addition, the physician explained that the Veteran "has suffered trauma from war experience where he developed his emotional condition." In March 2011, the Veteran submitted a private treatment record that indicates that the Veteran's symptomatology is related to his in-service stressor and that it is "more probable than not" that he is presenting PTSD and depression that is service connected. The Board recognizes that there is no clear VA opinion that attributes the Veteran's psychiatric symptoms and diagnoses to his period of service. Indeed, each VA examiner has provided a negative opinion regarding whether the Veteran's current acquired psychiatric disorder is related to service. Nevertheless, the Veteran's private treatment records dated from at least June 2003 provide the necessary information to link the Veteran's psychiatric symptoms to service. Indeed, the consistent private mental health treatment records attribute the Veteran's symptoms to the traumatic events he experienced in service. Moreover, the Veteran's mental health treatment records consistently discuss the Veteran's feelings and behaviors in conjunction with his in-service experience and injury. The Board finds that there is competent and credible unfavorable medical opinion evidence against the claim and competent and credible favorable medical opinion evidence in favor of the claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014). Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Reasonable doubt is resolved in favor of the Veteran. Accordingly, service connection for an acquired psychiatric disorder is warranted. B. Earlier Effective Date The effective date for the grant of service connection based on an original claim, a claim reopened after final disallowance, or a claim for increase 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 the later. 38 U.S.C.A. § 5100(b)(1) (West 2014); 38 C.F.R. § 3.400(b) (2015). A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui generis may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2015). The Veteran seeks an effective date earlier than June 23, 1982, for the grant of service connection for posttraumatic headaches. The Veteran filed his claim of service connection on June 23, 1982. Here, because the Veteran filed his claim more than one year after separation from active service, the effective date of service connection is the date of the receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b) (2015). The Veteran filed a claim for service connection for posttraumatic headaches on June 23, 1982. The effective date of his grant of service connection is the date that claim was received. The Board can find no basis to assign an earlier effective date. Also, the effective date of the disability rating can be no earlier than the date of the grant of service connection. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for an acquired psychiatric disorder is granted. An effective date prior to June 23, 1982, for the grant of service connection for posttraumatic headaches. ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs