Citation Nr: 1639575 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 04-09 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date prior to April 6, 2001 for the grant of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1969 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in pertinent part, granted service connection for PTSD, effective April 6, 2001. In July 2014, the Board denied the Veteran's claim for an effective date prior to April 6, 2001 for the grant of service connection for PTSD. The Veteran appealed this denied claim. In March 2016, the United States Court of Appeals for Veterans Claims (Court) issued a Memorandum Decision, finding that the Board erred insofar as it denied an effective date earlier than April 6, 2001 for the grant of service connection for PTSD. Specifically, the Court stated that the parties agreed that the Board failed to provide an adequate statement of reasons or bases regarding the application of 38 C.F.R. § 3.156(c). Therefore, the Court vacated the Board's decision denying an effective date prior to April 6, 2001 for the grant of service connection for PTSD, and remanded the matter to the Board. FINDINGS OF FACT 1. The Veteran filed his initial claim for service connection for PTSD on January 21, 1981. The claim was denied in June 1981 and March 1982. 2. In July 2008, the Veteran submitted service records, specifically unit records, which were associated with the claims folder for the first time. There was sufficient information in the record at the time of the prior rating decision for VA to have identified and obtained these records. 3. In an October 2009 rating decision, the Veteran was granted service connection for PTSD, effective April 6, 2001. This decision was based in part upon the stressor information contained in the service records submitted in July 2008. CONCLUSION OF LAW The criteria for an effective date of January 21, 1981 for the award of service connection for PTSD have been met. 38 U.S.C.A. §§ 1155, 5110 (West 2014); 38 C.F.R. §§ 3.159, 3.156, 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). Given the favorable outcome of this decision, no prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Earlier Effective Date Claim The Veteran contends that the effective date of the award of service connection for PTSD should be January 21, 1981, the date of his initial claim for service connection for PTSD. The Veteran's January 1981 claim was denied in a June 1981 rating decision, which denied service connection on the basis that there was no definite diagnosis of PTSD. In August 1981, the Veteran submitted a Vet Center Summary in which his treating counselor opined that the Veteran had a diagnosis of PTSD related to his service in Vietnam. The counselor noted that the Veteran served in Vietnam from September 1970 to August 1971 and identified the Veteran's unit assignment and base camp while in Vietnam. He stated that the Veteran reported experiencing sniper fire, and mortar and rocket attacks while in Vietnam. The Veteran also reported that he was aboard a truck in a small convoy in route to the base camp when Viet Cong ambushed them, and 10 of his fellow soldiers were killed. The Veteran reported that his base camp was under very heavy rocket attack for at least four hours in duration on December 25, 1970. VA did not request research for service department records be conducted despite knowing of their existence and having the relevant details and proper time frame in which to research the records. In light of this new evidence received within one year of the June 1981 decision, the decision did not become final and in March 1982 the RO readjudicated the Veteran's claim for service connection for PTSD and again denied the claim. No appeal was filed, and the March 1982 rating decision became final after one year. The Veteran's claim of service connection for PTSD was reopened and again denied in December 1999 and October 2002. Each time, no appeal was filed, and the decision became final after one year. On April 6, 2001, the Veteran submitted a request to reopen his previously denied claim of service connection for PTSD. In March 2003, the VA again denied the claim on the basis that there was no current diagnosis, specifically noting that the VA examiner indicated that he did not have confirmation of stressors that he could relate to a diagnosis. The Veteran appealed this decision. In July 2008, during the pendency of the appeal, the Veteran submitted service records, specifically records from his unit while in Vietnam. In an October 2009 rating decision, the Veteran was granted service connection for PTSD, with a rating of 50 percent effective April 6, 2001. This decision relied on the service records submitted in July 2008 to confirm the Veteran's identified stressors related to his service in Vietnam. Under 38 C.F.R. § 3.156(c), except as otherwise provided, 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 but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding paragraph (a) of the same section. If reconsideration is warranted, finality of the prior rating decision is vitiated, and the claim will be addressed de novo. This regulation does not apply to records that VA could not have obtained when it decided the claim because they did not exist or because the claimant failed to provide sufficient information for VA to identify and obtain the records. 38 C.F.R. § 3.156(c)(2). An award made based all or in part on records identified in § 3.156(c) (1) is effective on the date entitlement arose or the date which 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 denied claim. 38 C.F.R. § 3.156(c)(3). Where an initial claim is denied due to the lack of evidence of an in-service event, such as combat, but is later granted based all or in part on subsequently acquired service records establishing the in-service event, the claimant is entitled to a retroactive evaluation of the disability to assess the proper effective date, which would be the date of the original claim or the date entitlement otherwise arose, whichever is later. 38 C.F.R. §§ 3.156(c), 3.400; Vigil, 22 Vet. App. at 66-67 (2008). In this sense, the original claim is reconsidered, and the original claim serves as the date of the claim and the earliest date for which benefits may be granted. New and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. This provision was meant to allow VA to reconsider decisions and retroactively evaluate disability in a fair manner on the basis that a claimant should not be harmed by an administrative deficiency of the government. Since the March 1982 rating decision denying service connection for PTSD, additional, relevant service records were submitted by the Veteran that verified the Veteran's identified stressors related to his service in Vietnam. Such service department records are within the purview of 38 C.F.R. § 3.156(c). The additional service department records are relevant to the issue of service connection for PTSD because they confirm that the Veteran had in-service stressors that meet the required stressor element for service connection for PTSD. 38 U.S.C.A § 1154 (b); 38 C.F.R. §§ 3.304(d), 4.125(a). Therefore, the finality of the March 1982 rating decision is vitiated, and the March 1982 adjudication of the original service connection claim for PTSD is being readjudicated in this Board decision. See 38 C.F.R. § 3.156(c); Vigil, 22 Vet. App. at 66. The record reflects that the Veteran manifested symptoms of PTSD prior to filing his original claim for service connection for PTSD on January 21, 1981. The Board has not identified any document and/or statement from the Veteran which could reasonably be construed as a claim, either formal or informal, for service connection for PTSD prior to January 21, 1981. As the March 1982 rating did not become final and is being readjudicated in this rating decision pursuant to 38 C.F.R. § 3.156(c), January 21, 1981 is the earliest effective date that can be assigned for service connection for PTSD. 38 C.F.R. § 3.156(c)(3); Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011); see Vigil at 65 (stating that the regulation "authorizes an effective date [for a reconsidered claim based on newly discovered service department records] as early as the date of the original claim up to the date of the claim to reopen"). Here, the receipt of the service department records and the RO's subsequent grant of service connection based upon these records trigger the VA's duty to reconsider the rating decision that initially denied service connection for PTSD. The Veteran has had PTSD throughout the course of this claim. The Veteran provided sufficient information for VA to identify and obtain the records prior to rating decision initially denying his claim. The grant of service connection for PTSD is based in part upon the details of stressors contained in these relevant records. An earlier effective date of January 21, 1981 is warranted for the grant of service connection for PTSD. 38 C.F.R. §§ 3.156(c), 3.400. ORDER An effective date of January 21, 1981 for the award of service connection for PTSD is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs