Citation Nr: 1634198 Decision Date: 08/30/16 Archive Date: 09/06/16 DOCKET NO. 12-31 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an effective date prior to October 4, 2001 for the award of service connection for psychiatric disability, to include depressive disorder with agoraphobia, panic attacks, and sleep disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision by the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's claim for an effective date prior to October 4, 2001, for an award of service-connection for depressive disorder with agoraphobia, panic attacks, and sleep disorder. In March 2015, the Veteran was afforded a hearing at the Central Office before John J. Crowley, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2014). In a May 2015 decision, the Board dismissed the instant claim. The Veteran appealed. In a June 2016 order, the Court of Appeals for Veterans' Claims (Court) upheld a joint motion of the parties and remanded the case back to the Board for action consistent with the joint motion. FINDINGS OF FACT 1. The Veteran's October 4, 2001 communication is the first of record, following his earlier March 1979 abandoned claim, that constitutes a claim for service connection for psychiatric disability. 2. Prior to October 4, 2001, the Veteran was not shown to have a psychiatric disability subject to compensation. CONCLUSION OF LAW The criteria for an effective date prior to October 4, 2001 for an award of service connection for psychiatric disability, to include depressive disorder with agoraphobia, panic attacks, and sleep disorder, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.158, 3.400 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background In a March 1979 claim, the Veteran indicated that although he had never been treated for his nervous condition per se during service, he believed that it stemmed from his skin condition and also from the fact that he became a part of the Army's Research Experiment Group at the Aberdeen Proving Ground in Maryland in 1975-1976. He noted that it seemed that after he was discharged from the service and all the time spent in Germany, he could not get his mind off the predicament he had placed himself in because he was very nervous and irritable and somewhat withdrawn after having tested drugs like Valium, Atropine and other medicines during service. He had come to realize that he was a different person from the young man who joined the Army in 1974. A March 1979 VA medical certificate shows that the Veteran was seen by a psychiatrist for complaints of worrying excessively about marital troubles and experiencing friction with his job at the Post Office. The Veteran also reported that the service had "changed him" and made it difficult to readjust to civilian life. After interview, the psychiatrist rendered a diagnosis of personality disorder, paranoid type. The psychiatrist informed the Veteran that he was not service-connected for any disability; was not currently in need of hospitalization; and would not likely be in need of hospitalization in the near future. Thus, the psychiatrist informed the Veteran that he did not have a medical reason to provide him with treatment. A subsequent October 1980 medical certificate similarly shows a diagnosis of personality disorder with severe paranoid ideation. In a July 2, 1979 letter, the RO noted that it had reviewed his claim for compensation for nervousness. The RO indicated that the available records did not indicate that the Veteran had received treatment for a nervous condition during service, nor was such a condition recorded in the report of his separation examination. Thus, the RO advised the Veteran that no further action would be taken on his claim unless he submitted evidence to show that the condition was incurred in or aggravated by service and still existed. In August 2001, the Veteran received a copy of medical records pertaining to the research in which he participated during service. These records indicate that the Veteran was a medical research volunteer during 1975. As part of the research, he was given anticholinergic drugs, including physostigmine, Scopolamine and/or atropine sulfate. He was also given diazepam (valium). The anticholinergic drugs resulted in a number of side effects, including restlessness, dry mouth, vertigo, slurred speech, loss of appetite, a feeling of weakness and drowsiness. In a claim received on October 4, 2001, the Veteran sought service connection for psychiatric disability, including anxiety, nervousness and claustrophobia. Along with this claim the Veteran submitted the records documenting his participation in the research during service in 1975. In a September 2005 rating decision, the RO granted service connection for depressive disorder and panic attacks and assigned a 50 percent rating effective May 5, 2003. In a subsequent June 2009 rating decision, the RO granted an earlier effective date for service connection for the psychiatric disability (i.e. depressive disorder with agoraphobia, panic attacks and sleep disorder) effective October 4, 2001. In the June 2016 joint motion, the parties determined that the Board had not provided adequate reasons and bases for dismissing the Veteran's claim. III. Law and Regulations Given the procedural complexity in this case and the findings of the parties, the Board will not issue a dismissal and will proceed to decide this case on the merits. Further discussion of the Court's jurisprudence on this issue, and the conflict between several key Court determinations, and in light of the joint motion is simply not wanted as it only provides more complexity (and possibly extensive litigation and more delays in this case). The assignment of an effective date for an award of service connection is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection 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 therefore." 38 U.S.C.A. § 5110(a). However, if a granted claim is filed within one year of the Veteran's discharge or release from active service, the effective date shall be the day following the date of such discharge or release. 38 U.S.C.A. § 5110(b). The implementing regulation, 38 C.F.R § 3.400, states that the effective date for an award of compensation based on an original claim for service connection or a claim reopened after final disallowance will be "the date of the receipt of the claim or the date entitlement arose, whichever is later." If the claim is received within 1 year after separation from service, the effective date will be the day following separation from active service. Generally, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 C.F.R. § 3.151(a) (2013). However, any communication or action, indicating an 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 juris may be considered an informal claim. Such informal claim must identify the benefit 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 1 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. The mere existence of medical records generally cannot be construed as an informal claim. Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). An exception to this general rule exists pursuant to 38 C.F.R. § 3.157(b)(1) (2014). This provision describes what constitutes an informal claim for increased benefits or an informal claim to reopen and applies when a formal claim for pension or compensation has been allowed, or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree. Where evidence requested in conjunction with an original claim is not furnished within one year after the date of the request, the claim will be considered abandoned. Should the right to benefits be finally established, benefits shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158(a). In this case, the Veteran initially claimed service connection for psychiatric disability (i.e. nervousness) in March 1979. While the RO did not actually adjudicate this claim through issuance of a rating decision, the Veteran did not respond to the RO's July 1979 request for additional evidence within one year. Consequently, the claim must be considered as having been abandoned and cannot form the basis for assignment of an earlier effective date. See 38 C.F.R. § 3.158 (indicating that should the right to the benefit sought ultimately be established, benefits shall commence not earlier than the date of filing of the new claim (i.e. claim subsequent to the one that has been abandoned); See also Jernigan v.Shinseki, 25 Vet. App. 220 (2012) (indicating that even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations). The next communication of record indicating an intent apply for service connection for psychiatric disability is the Veteran's communication received on October 4, 2001, the claim which forms the basis for assignment of the current effective date. Subsequent to the RO's July 1979 letter but prior to October 4, 2001, there is no communication of record, which indicates such an intent. Consequently, there is no basis in the record for finding that the Veteran filed with VA an informal or formal claim for service connection for psychiatric disability within this time frame. Accordingly, there is no basis for assigning an effective date for this service-connected disability prior to October 4, 2001. 38 C.F.R. § 3.400. In addition, beyond the above, the evidence does not establish that the Veteran suffered from a psychiatric disorder subject to VA compensation prior to October 4, 2001. In this regard, the only psychiatric diagnosis of record prior to October 4, 2001 is personality disorder. However, personality disorders are not considered to be diseases or injuries within the meaning of the applicable legislation and are not subject to service connection on a direct basis. 38 C.F.R. §§ 3.303(c), 4.9. See Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997), and cases cited therein. Notably, a superimposed disability that aggravates a congenital personality disorder during service can form a basis for service connection for the underlying personality disorder. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. However, the evidence does not establish that this occurred in the Veteran's case. Thus, there is simply no evidentiary basis for concluding that entitlement to service connection for any psychiatric disability, including personality disorder, arose prior to October 4, 2001. Accordingly, this finding concerning the "date entitlement arose" also requires the Board to conclude that an earlier effective date is not warranted. 38 C.F.R. § 3.400. The Veteran has essentially asserted that had the records of the research performed on him during service been available earlier, his current acquired psychiatric disability would have been recognized at an earlier date. (Notably, it appears that these records were initially confidential). The Board empathizes with this assertion as it is clear that taking the anticholinergic medicine during service was traumatic to the Veteran and it also appears that any mental health practitioners who evaluated him prior to October 4, 2001 would not have reviewed the research records. However, the Board is bound to follow the controlling law and regulations. Once again, this authority requires that benefits shall commence not earlier than the date of filing of the new service connection claim (i.e. the claim following the abandoned service connection claim) and that the effective date is the date of the receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. §§ 3.158, 3.400. Within these provisions, there is no basis for assigning an earlier effective date based solely on disclosure of previously confidential information. Simply stated, this argument does not provide a basis to grant this claim. In sum, application of the facts of this case to the governing legal provisions requires the Board to deny the instant claim. 38 C.F.R. §§ 3.158, 3.400. III. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, VA provided adequate notice in a letter sent to the Veteran in January 2008. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The service treatment records, post-service VA treatment records and Social Security Administration (SSA) records are associated with the claims file. In specific regard to VA treatment records, the Veteran identified having receiving VA treatment in the New York City between 1979 and 2001 and the RO appropriately requested and received the available records from the New York Harbor VA Healthcare System (NYVHS), with the request specifically instructing NYVHS to search appropriate record archives. There is no indication that there are any additional available records from this time frame. Moreover, the Veteran obtained available records from SSA and there is no indication that there are any additional records available from this source. In sum, there is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist and the Board will proceed to issue its decision. ORDER An effective date prior to October 4, 2001 for the award of service connection for psychiatric disorder, to include depressive disorder with agoraphobia, panic attacks, and sleep disorder, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs