Citation Nr: 1638854 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 13-13 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES Entitlement to an effective date earlier than September 4, 2002, for the grant of service connection for a psychiatric disorder, to include schizophrenia and post traumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Kenneth A. Carpenter, Attorney ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to December 1968 that included duty in the Republic of in Vietnam. His military occupational specialty was that of a field communication crewman. His awards and decorations include the National Defense Service Medal, Vietnam Service Medal, Vietnam Cross of Gallantry with Palm, and Vietnam Campaign Medal. Military administrative records reflect that, during his service in Vietnam, the veteran was assigned to a Supply and Service battalion in the Saigon area, and subsequently to the U. S. Army Depot, Long Binli. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. In a June 2015 decision, the Board denied the claim for an earlier effective date for the grant of service connection for a psychiatric disorder to include schizophrenia and PTSD. The Veteran appealed that decision on the psychiatric matter to the Court of Appeals for Veterans Claims (Court). In March 2016, the Court granted a joint motion to vacate and remand (JMR) this matter. The case has been returned to the Board for compliance with the JMR directives. The Board notes that the Veteran's appeal has been reviewed using the Veterans Benefits Management System (VBMS), VA's electronic system for document record keeping, and relevant documents contained therein are part of the Veteran's electronic claims file. FINDINGS OF FACT 1. VA received service department records in November 2011 after it had issued a denial of the claim a nervous condition on July 27, 1978 (claimed as emotional problems with nervousness), which confirmed the Veteran's exposure to traumatic and stressful experiences in service. 2. The Veteran had psychiatric problems in service and prior to VA's receipt of his original VA disability claim. 3. The Veteran had psychiatric disability, variously diagnosed as schizophrenia and manic depressive disease, and later as paranoid schizophrenia and PTSD, prior to VA's receipt of his original claim on July 27, 1978. 4. Date of claim, July 27, 1978, is the earliest date that may be assigned for the award of service connection based on claim to reopened where relevant service department records are received. CONCLUSION OF LAW The criteria for the assignment of an effective date of July 27, 1978 for the grant of service connection for a psychiatric disability, variously diagnosed as schizophrenia and manic depressive disease, and later as paranoid schizophrenia and PTSD, are met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.156, 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that VA provided the Veteran with all required notice during this appeal, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his entitlement to the benefit sought. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A or 38 C.F.R. § 3.159. Effective Dates of Claims Where Service Department Records are Received In an April 2010 rating decision, the RO granted service connection for schizophrenia with the assignment of an initial evaluation of 70 percent from September 27, 2005. In an April 2012 rating decision, the RO assigned an effective date from September 4, 2002, the date of receipt of the claim to reopen, for the grant of service connection. The Veteran believes that an effective date earlier than assigned for the award of service connection is warranted. His attorney argues that the award of service connection should extend to July 1978, the date VA received an original disability compensation claim because the grant was based, at least in part, on relevant service department records added to the evidence of record in November 2011. Legal Criteria The assignment of effective dates of awards 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 therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim or a claim reopened after final disallowance "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. With a claim for service connection, the effective date of an award will be (1) the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service or (2) the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i). If a claimant files an application for service connection with VA, and the claim is disallowed, he has the right to appeal that disallowance. See, e.g., 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If the claimant does not initiate an appeal within one year, or if the claimant fails to perfect the appeal by filing a timely substantive appeal, or if the claimant initiates a timely appeal and the appeal is later withdrawn or denied, the disallowance becomes final. See 38 C.F.R. §§ 20.204, 20.302, 20.1100, 20.1103. The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). However, under 38 C.F.R. § 3.156(c), where new and material evidence consists of a supplemental report from the service department, or additional service medical records, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. It is noted that there were amendments to 38 C.F.R. § 3.156(c) that became effective October 6, 2006, subsequent to the Veteran's claim which resulted in the grant of service connection. Prior to the October 6, 2006, there was no limitation on VA's ability to reconsider previously decided claims in light of the submission of new and material service department records. See Cline v. Shinseki, 26 Vet. App. 18, 23 (2012). The Court in Cline also found that the addition of subsection (c)(2) to 38 C.F.R. § 3.156 was not intended as clarification of any past practice of VA in limiting reconsideration of claims based on a claimant's lack of cooperation. Id. at 25. The Court determined that the amendments to 38 C.F.R. § 3.156(c) were not expressly made retroactive. Id. at 26. Accordingly, the provisions of 38 C.F.R. § 3.156(c)(2) are not applicable in this case. Factual Background The record shows that the Veteran reported a history of nervous trouble on his service separation examination dated in September 1968. A personality disorder was diagnosed at that time. See Rating Decision (October 27, 1978); BVA Decision (August 30, 1996). The veteran was afforded a psychiatric evaluation by the service department later in September 1968 in connection with administrative board proceedings. A diagnosis of passive dependency (personality), passive-aggressive. Administrative separation due to unsuitability was recommended. See BVA Decision (August 30, 1996). The Veteran was separated in December 1968. Service personnel records document disciplinary action and behavioral problems. Not long after service, in April 1970, the Veteran was treated for complaints of nervousness especially when he was around people. History of depression was noted. The impression was depressive neurosis; and, in May 1970, he received a diagnosis of depressive neurosis. See Medical Treatment Record - Non Government Facility (August 17, 1978). VA received a VA disability compensation claim for a nervous condition on July 27, 1978 (claimed as emotional problems with nervousness). In an October 1978 rating decision, the RO denied service connection for a nervous condition, diagnosed as manic depressive neurosis. The RO notified the Veteran of this decision by letter dated in November 1978. No appeal was filed. Medical records show that, in March 1977, the Veteran was diagnosed with schizophrenia. Hospital discharge summary for the period from May 1978 to June 1978 reflects that the Veteran had depressive symptoms that included sadness, fatigue, hyperactivity, and trouble falling asleep during a clinical visit following a psychiatric hospitalization in 1974. The June 1978 discharge summary shows that manic depressive disease, circular, was diagnosed. In May 1979, manic depressive illness manic was diagnosed. In October 1982, paranoid schizophrenia was diagnosed. In October 1982, the Veteran was hospitalized and again diagnosed with paranoid schizophrenia. In August 1986 and April 1987, the Veteran continued to receive diagnoses for chronic paranoid schizophrenia. Correspondence dated in January 1988 from the Veteran to his Congressman reflects that he had had a psychiatric problem right after service. Correspondence dated in October 1989 from the Veteran to VA reflects that he felt that his service-connected disability had worsened. The RO notified the Veteran in December 1989 that new and material evidence was required to reopen his claim for service connection for a nervous condition. In September 1990, VA received VA Form 21-526 wherein the Veteran requested service connection for PTSD. The RO notified the Veteran in an October 1990 letter that that new and material evidence was required to reopen his claim for service connection for a nervous condition. In March 1993, VA received VA Form 21-526 from the Veteran wherein he again requested service connection for PTSD. By letter dated in May 1993, the RO asked the Veteran to submit a description of the traumatic incidents he experienced in service and to submit copies of medical treatment reports. No response to this letter was received. In July 1993, VA received the Veteran's service personnel records pertaining to the Veteran's military disciplinary proceedings and his foreign service. These records showed that the Veteran served in Vietnam from February 1968 to April 1969 (under confinement from 27 September to 29 November 1968) and had served in the Tet Counter Offensive Campaign. In a September 1993 rating decision, the RO denied the claim for service connection for PTSD because the evidence showed no identified stressors from the Veteran and because there was no diagnosis of PTSD of record. In a November 1993 statement, the Veteran's sister indicated that the Veteran had lived with her before and after service, and that he displayed emotional problems since service. In August 1996, the Board denied service connection for an acquired psychiatric disorder, to include manic-depressive illness, schizophrenia and PTSD. No appeal was filed. A September 2001 admissions record shows that the Veteran entered VA domiciliary care for depression. A March 2001 VA hospital discharge summary reflects that the Veteran sought to enter a VA PTSD program. January 2002 VA treatment records reflect a diagnosis for PTSD. VA treatment records show an impression for paranoid schizophrenia in partial remission on medication and PTSD with minimal symptoms in March 2002. In September 2002, VA received VA Form 21-526 requesting service connection for PTSD. VA treatment noted dated in September 2005 suggested that there was a link between the Veteran's psychiatric disorders and service, noting that he was treated for schizophrenia and PTSD. A March 2008 VA medical opinion linked the Veteran's schizophrenia and PTSD to his active military service. An October 2009 VA medical opinion linked the Veteran's schizophrenia to service; the examiner found it was at least as likely as not that chronic paranoid schizophrenia is related to active service, noting the stressful condition that included 6 months of solitary confinement and in-service documented behavior problems. In an April 2010 rating decision, the RO granted service connection for schizophrenia. VA received in November 2011 a letter from the Joint Services Record Research Center (JSRRC) (dated June 2011) indicating that the Veteran had been stationed in the Saigon area and that mortar rounds had landed near the northwestern edge of Saigon on one occasion in March 1968, and that Saigon had come under extensive attack by the Viet Cong in May 1968. An April 2012 rating decision assigned an effective date of September 4, 2002, for the grant of service connection for schizophrenia with PTSD. Analysis Having carefully reviewed the evidence in conjunction with the appropriate veterans' benefits laws, the Board finds that the evidence supports the assignment of an effective date of July 27, 1978-date of VA's receipt of the Veteran's original claim for benefits-for psychiatric disability, diagnosed as schizophrenia and manic depressive disease, and later as paranoid schizophrenia and PTSD. VA received service department records in November 2011 after it had issued a denial of the claim a nervous condition on July 27, 1978 (claimed as emotional problems with nervousness). These records are relevant insofar as they demonstrate that the Veteran had been exposed to traumatic events during his active duty. Because relevant service department records were received for a claim filed prior to October 6, 2006, VA must reconsider the claim as though there had been no prior final denial. See 38 C.F.R. § 3.156(c)(1). Thus, the effective date of the award must be the date entitlement arose or the date of claim, whichever is later. 38 C.F.R. § 3.156(c)(3). Here, the later of the two dates is date of claim. The Board finds that the evidence of record shows that the Veteran had psychiatric problems that began in service and existed prior to his original VA disability claim dated July 27, 1978. Therefore, the appropriate effective date for award of service connection for psychiatric disability is July 27, 1978. The Board acknowledges that the Veteran did not have a diagnosis for PTSD at the time he filed his original claim, unlike schizophrenia. However, when the Veteran filed his original VA claim in 1978, he sought compensation for the symptoms regardless of the diagnosis and, at that time, the American Psychiatric Association had not yet added PTSD to it Diagnostic and Statistical Manual of Mental Disorders. Notably, the Veteran had had a diagnosis for depression at the time of his original VA claim in 1978, which is a symptoms commonly associated with PTSD. Also, the Board observes that the Veteran had originally requested service connection for emotional problems with nervousness; there is lay evidence supporting the existence of emotional problems since the Veteran separated from service; and there is medical evidence documenting depression soon after service. The Board believes that the Veteran's claim for emotional problems with nervousness is an appropriate surrogate for what later became known at PTSD in light of the medical evidence of record. As such, it not necessary to assign separate effective dates for the award of service connection involving the psychiatric disability here, which was variously diagnosed during the appeal period that extends to July 27, 1978. Accordingly, an effective date from July 27, 1978-date of VA's receipt of the Veteran's original claim for benefits-for the award of service connection for psychiatric disability, variously diagnosed as schizophrenia and manic depressive disease, and later as paranoid schizophrenia and PTSD, is granted. The Board acknowledges that Veteran's attorney's request for the Board to assign a 100 percent disability evaluation in this matter to July 27, 1978. However, as the matter before the Board involves the award of service connection and not the assignment of an evaluation, the Board does not have jurisdiction to assign an evaluation in the first instance. It is noted that the retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156 (c). Pursuant to 38 C.F.R. § 3.400 (q)(2), the effective date of award based on new and material evidence consisting of service department records is to agree with the retroactive evaluation (since it is considered that these records were lost or mislaid) or date of receipt of claim on which prior evaluation was made, whichever is later, subject to rules on original claims filed within one year after separation from service. ORDER An effective date of July 27, 1978-date of VA's receipt of the Veteran's original claim for benefits-for the award of service connection for psychiatric disability, variously diagnosed as schizophrenia and manic depressive disease, and later as paranoid schizophrenia and PTSD, is granted. ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs