Citation Nr: 1723767 Decision Date: 06/23/17 Archive Date: 06/29/17 DOCKET NO. 95-24 299A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than September 14, 2001, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The Veteran appellant had active military service in the United States Coast Guard from June 17, 1974 to January 30, 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia in which the RO effectuated the Board's grant of the appellant's claim of entitlement to service connection for posttraumatic stress disorder (PTSD). The RO assigned an initial 100 percent disability evaluation for the service-connected PTSD. The RO also assigned an effective date of September 14, 2001; the Veteran is appealing that effective date. This appeal was processed using the VA paperless claims processing system. Accordingly, any future consideration of this appellant's case must take into consideration the existence of the electronic record. FINDINGS OF FACT 1. The appellant was separated from active military service in January 1975; she did not raise a claim of entitlement to service connection for PTSD within one year after her discharge from service. 2. The appellant submitted a claim for service connection for gynecological disorders in a VA Form 21-526 that was received by VA on May 13, 1980. 3. Service connection for anxiety neurosis was denied in a rating decision issued in October 1980; the appellant was notified of the denial, but she did not appeal the denial and no appropriate collateral attack of the October 1980 rating decision has been initiated by the appellant. 4. The evidence considered by the RO in denying the anxiety claim included service medical and personnel records that indicated that the appellant had been discharged from service based on her pregnancy; these records also indicated that the appellant sought treatment for anxiety and a possible sexually transmitted disease in July 1974, that she was determined to be pregnant in November 1974, and that she had gotten married in November 1974. 5. A January 1995 letter from the appellant's representative stated that the appellant wanted to reopen her claim for a nervous condition based on new and material evidence; she asked that her claim be considered on a direct connection basis and on an aggravation basis. 6. The appellant presented testimony at a personal hearing conducted in August 1995, and testified that her current psychiatric disorder had a direct relationship to her infection with trichomonas; there was no mention of any sexual assault in service. 7. During a Board hearing conducted on September 14, 2001, the appellant indicated that she was seeking service connection for PTSD and submitted supporting documents, including an opinion from a Vet Center psychologist. 8. In an August 2009 decision, the Board granted service connection for a psychiatric disorder other than PTSD on the basis that the appellant had a pre-existing anxiety disorder that had been aggravated by her active duty service. 9. The Veteran did not appeal the Board's determination that the anxiety disorder preexisted service and she did not appeal the aggravation basis for the grant of service connection. 10. In a July 2009 medical opinion, a private psychiatrist stated that the appellant had a comorbid diagnosis of generalized anxiety disorder and indicated that not all of the appellant's current symptomatology was attributable to her PTSD. 11. In a July 2009 statement, the appellant's Vet Center psychologist stated that she had provided treatment to the appellant since May 2001. 12. No communication or medical record prior to May 1, 2001, may be interpreted as an informal claim of entitlement to service connection to PTSD. CONCLUSION OF LAW The criteria for the assignment of an effective date of May 1, 2001, but no earlier, for the grant of service connection for PTSD have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.157, 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant's earlier-effective-date claim arises from her disagreement following the initial grant of service connection. The United States Court of Appeals for Veterans Claims (Court) has held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated - it has been proven, thereby rendering notice under 38 U.S.C.A. § 5103(a) no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, the United States Supreme Court has held that, even if there has been an error in the VA notice, it should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, neither the appellant nor her attorney has alleged any prejudicial or harmful error in VA notice, and the Board perceives none, particularly in view of Dingess, supra. All relevant facts with respect to the appellant's claim addressed in the decision below have been properly developed. Accordingly, the Board finds that VA has satisfied its duty to assist the appellant in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claim. Therefore no useful purpose would be served in remanding this matter for more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the appellant. The Court has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. The Merits of the Claim The appellant has been granted service connection for PTSD on a direct basis. The PTSD was determined to be etiologically related to the appellant's military sexual trauma (MST) in a Board decision issued in September 2010; the Atlanta RO assigned an effective date of September 14, 2001, the date of the appellant's testimony before the Board wherein she raised the issue of PTSD due to MST, for this grant of service connection. The appellant contends that the award should go back further because she is service-connected for anxiety neurosis, effective in January 1995, which is related to the current PTSD. She contends that her PTSD is related to MST that occurred in September or October of 1974. In Amberman v Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) the United States Court of Appeals for the Federal Circuit (Federal Circuit) agreed with the Court's holding in Esteban v. Brown, 6 Vet. App. 259 (1994) as to when 38 C.F.R. § 4.14 is and is not for application. Id. at 1381. In Esteban, a facial injury had resulted in that individual suffering disfigurement, painful scars, and muscle damage that made it difficult to chew. Esteban, 6 Vet. App. 261. As summarized in Amberman, "[b]ecause each diagnostic code dealt with different symptoms (cosmetic issues, pain, and difficulty chewing, respectively), the Court held that they did not constitute the "same disability" or "same manifestation," and therefore section 4.14 was inapplicable." Amberman, 570 F.3d at 1381 (citing Esteban, 6 Vet. App. at 261-62). The Federal Circuit agreed with the Court's holding in Esteban that the critical element in assigning separate ratings is that none of the symptomatology of any of the conditions is duplicative or overlapping with the symptomatology of another condition. Id. The Amberman case further stated that "bipolar affective disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat the separately diagnosed conditions as producing only the same disability." Id. at 1381. Here, the appellant has been awarded service connection for both an anxiety disorder and for PTSD. The Board granted service connection for the anxiety disorder based on there being a preexisting condition that was aggravated by service. Review of the service medical records for the appellant reveals that she was seen for anxiety in July 1974 - prior to the reported MST of the fall of 1974. In addition, in a July 2009 medical opinion, a private psychiatrist stated that the appellant had a comorbid diagnosis of generalized anxiety disorder in addition to PTSD and indicated that not all of the appellant's current symptomatology was attributable to her PTSD. Indeed, VA treatment records also reflect concurrent psychiatric diagnoses. For example, a November 2005 VA psychiatric progress note includes an assessment of PTSD and an assessment of generalized anxiety disorder. Furthermore, the Veteran did not appeal the Board's August 2009 determination that her anxiety disorder preexisted service and she did not appeal the aggravation basis for the Board's grant of service connection. Thus, the Board concludes that the anxiety disorder and the PTSD are two separate and distinguishable psychiatric disabilities and that, therefore, the effective date claim for the PTSD is not related to the grant of service connection for the preexisting anxiety disorder on an aggravation basis. Turning to the matter of an earlier effective date for the grant of service connection for PTSD, 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). A claim for VA benefits, whether formal or informal, must be in writing and must identify the benefit sought. 38 U.S.C.A. § 5101; 38 C.F.R. §§ 3.1(p), 3.151, 3.155; Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); Lalonde v. West, 12 Vet. App. 377 (1999). Treatment records by themselves do not constitute 'informal claims' for service connection. Sears v. Principi, 16 Vet. App. 244 (2002). While the VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12, Vet. App. 32 (1998). The first specific mention of sexual trauma in the evidence of record is found in an August 2001 VA treatment record that indicates that the appellant was being seen in the Women's Sexual Trauma Clinic. When the appellant was seeking service connection for her anxiety disorder and presented testimony in August 1995, she made no mention of any MST and stated that her psychiatric disorder was due to physical problems. A May 2002 VA psychiatry note indicates that the appellant had a history of depression and early childhood trauma and that she had been put on medication for depressive symptoms in late 1997. However, there was no mention of any MST. In addition, VA psychiatry treatment notes dated in February 1998, and June 1998, only mention rule out PTSD secondary to abuse/trauma without any further elaboration. Furthermore, even if there had been a diagnosis of PTSD in 1997 or 1998, and that diagnosis was considered, arguendo, an informal claim for service connection for PTSD, the appellant did not submit a formal claim for PTSD within one year of December 31, 1998. As previously noted, the first mention of a claim of entitlement for service connection for PTSD based on MST occurred in the September 14, 2001 Travel Board hearing testimony of the appellant. The appellant also submitted supporting documents during the hearing. Since the PTSD is separate from the anxiety disorder, the September 2001 PTSD claim was an original claim. Also as noted above, regulations provide that an effective date of an award of service connection is the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The Board has considered whether any evidence of record could serve as an informal claim in order to entitle the Veteran to an earlier effective date. In this regard, 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 juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155. In relation to that point, the Board has also considered the Court's holding in Bell v. Derwinski, 2 Vet. App. 611 (1992) that VA has constructive notice of VA treatment records. After reviewing the evidence of record, the Board concludes that, since the appellant was treated at the Vet Center for PTSD beginning in May 2001, those Vet Center treatment records constituted an informal claim for service connection. Therefore, May 1, 2001, is therefore the earliest possible date for the grant of entitlement to service connection for PTSD. Although the evidence of record does not reveal an exact date upon which the entitlement arose, the Board notes that such information is not required in order to conclude that the date assigned herein is the earliest possible effective date. The reason for this is that, if the entitlement arose prior to the selected date, then the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400 (b)(2). Any evidence showing that the entitlement occurred after the selected date would not entitle the appellant to an even earlier effective date. Put another way, the controlling law and regulations regarding effective dates are clear. The effective date of an award of compensation based on an original claim (received beyond one year after discharge), will be the date of VA receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (a),(b)(1); 38 C.F.R. § 3.400(b)(2). The Board notes, in this case, that the appellant's claim was received after the medical evidence demonstrates the appellant was experiencing psychiatric problems related to MST. Thus, in this case, the later date is the date the claim for service connection was raised (May 1, 2001). In reaching this conclusion, the Board emphasizes that an effective date of an award of service connection is not based on the earliest medical evidence, but rather on the date that the application upon which service connection was eventually awarded was filed with VA, i.e., the informal claim of May 1, 2001 demonstrating Vet Center treatment for PTSD due to MST that was followed within one year by the September 14, 2001 written claim specifying that the appellant sought service connection for PTSD based on MST. See 38 C.F.R. § 3.157 (b)(1). Here, the record reflects that the appellant did not file a formal or informal application for service connection for PTSD prior to May 1, 2001, and that there is no evidence of a report of MST prior to May 1, 2001. Thus, there is no legal basis to assign an earlier effective date because the Board has herein already awarded the appellant the earliest date available under the law. As there is not an approximate balance of evidence on the question of whether the assignment of an effective date earlier than May 1, 2001 is warranted, the "benefit-of-the-doubt rule," enunciated in 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102, is inapplicable. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER An effective date of May 1, 2001, but no earlier, for the grant of service connection for posttraumatic stress disorder is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs