Citation Nr: 1745093 Decision Date: 10/11/17 Archive Date: 10/19/17 DOCKET NO. 11-05 418A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than March 11, 2005, for the granting of service connection for posttraumatic stress disorder (PTSD) and related symptoms, including anxiety and depression. 2. Entitlement to an initial rating higher than 50 percent for the PTSD and these related symptoms, including the anxiety and depression. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESSES AT HEARING ON APPEAL The Appellant-Veteran and his spouse. ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to June 1969. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, implemented the Board's August 2009 award of service connection for PTSD and related symptomatology, including anxiety and depression, and assigned an initial 50 percent evaluation effective March 11, 2005. In February 2015, in support of his requests for an earlier effective date and higher initial rating for this service-connected disability, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board - in other words at a Travel Board hearing. A transcript of the hearing is in the electronic (i.e., paperless) claims file, so of record. In a subsequent March 2015 decision, the Board denied the Veteran's claim for an earlier effective date for the granting of service connection for his PTSD. He appealed to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). In July 2016, the Court issued a memorandum decision vacating the Board's March 2015 decision denying this earlier-effective-date claim, and remanding this claim to the Board for readjudication in compliance with directives specified. More specifically, the Court found that the record on appeal in March 2015, when the Board previously adjudicated this claim, reasonably raised the issue of whether the Board's August 2009 award of service connection was based, in part, on official service department records that existed and had not been associated with the claims file when VA first decided the claim, such that an earlier effective date was warranted under 38 C.F.R. § 3.156(c) (2005 & 2016). This appeal consequently has been returned to the Board for consideration of this, as well as other questions of fact, noted by the Court in the July 2016 memorandum decision. Meanwhile, in a November 2016 rating decision, the Veteran was awarded a total disability rating due to individual employability (TDIU), effective from January 28, 2010 to May 6, 2016. He filed a Notice of Disagreement (NOD) in March 2017 initiating an appeal for an earlier effective date. The RO, i.e., Agency of Original Jurisdiction (AOJ), has acknowledged receipt of his NOD and is developing that appeal separately from the appeal currently before the Board. The Board therefore is not taking jurisdiction of this other claim, instead, referring it to the AOJ for the appropriate action. The issue of entitlement to an initial rating higher than 50 percent for the PTSD and related symptoms is addressed in the REMAND portion of this decision. However, the Board is going ahead and deciding - indeed granting - the claim for an earlier effective date for the award of service connection for this disability. FINDINGS OF FACT 1. The Veteran's original claim of entitlement to service connection for an acquired psychiatric disorder, then claimed generically as a nervous condition, was received in July 1969 (so within one year of his discharge from service) and denied by the RO in an unappealed September 1969 rating decision. 2. He attempted to reopen this claim, now referencing PTSD, in January 2003, and the claim again was denied in a September 2003 rating decision that, when not appealed, became a final and binding determination. 3. He filed yet another petition to reopen this claim in March 2005 and relevant official service department records (consisting of information received from the Joint Services Records Research Center (JSRRC) in August 2006 and May 2007) that were available but not of record at the time of the initial September 1969 rating decision were associated with the claims file. 4. The eventual grant of service connection for PTSD in the August 2009 Board decision was based, in part, on those new service department records. 5. The pre-amendment version of 38 C.F.R. § 3.156(c) (2005) applies in this case; there resultantly is no limitation on VA's ability to reconsider a previously-decided claim in light of the submission of new-and-material service department records, and consequently the appropriate effective date for the eventual granting of service connection for PTSD and related symptoms is back to when the Veteran filed his initial claim for what amounts to this same disability. CONCLUSION OF LAW The criteria are met for an earlier effective date of July 2, 1969, for the award of service connection for PTSD and related symptoms, including anxiety and depression. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.156(c) (2005); 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has met all statutory and regulatory notice and duty to assist obligations. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). But irrespective of that, this earlier-effective-date claim is being granted, regardless, so even had these obligations not been met, at most this would amount to nonprejudicial, i.e., harmless error. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (explaining that the claimant has the burden of proof of showing there has been an error in developing his claim, but also beyond that, showing it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless). See also 38 C.F.R. § 20.1102 (2016). The Veteran contends that an earlier effective date of July 2, 1969, the date he filed his initial claim for service connection for an acquired psychiatric disorder ("nervous condition"), is warranted in this instance for the eventual award of service connection for PTSD and related symptoms, including anxiety and depression, because evidence later obtained (namely, service department records), if considered at the time of that initial adjudication of the claim, would have permitted granting it. The Board agrees in principle and finds that the correct effective date is indeed back to the time of the conclusion of his service since his initial claim was for what amounts to the same disability. Generally, if the Veteran filed a claim for service connection for the condition at issue within one year of his separation from service, then his effective date for the grant of compensation benefits for the condition may be retroactive to the day following his discharge from service. In essence, this obligates VA to compensate him for the disability from the point when the service department's obligation ended, i.e., from the point when he transitioned from military to civilian life. But if he did not file a claim for this condition within one year after service, the earliest effective date he may receive is when he eventually filed his claim. And if there was a decision denying his claim, which he did not appeal or abandoned, then the earliest effective date that he may receive (if his claim is later granted on the basis of new and material evidence) is the date of receipt of his petition to reopen the claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (b)(2)(i), (r), (q)(1)(ii). In July 1969, so rather immediately following the conclusion of his service, the Veteran filed a claim for service connection for an acquired psychiatric disorder (then generically described as a "nervous condition"), which was denied in a September 1969 rating decision. [Note: VA did not, however, adopt the PTSD nomenclature until considerably later, in 1980 or thereabouts.]. In that initial decision, the RO acknowledged he had been hospitalized during his service, in November 1968, for psychiatric evaluation, also that during that hospitalization and at other times during his service there had been mention of rage reaction to stress, having attacked a non-commissioned officer on two occasions, having had emotional instability and acute situational reaction, and being seen in the stockade in April 1969 with a resultant diagnosis of passive-aggressive personality, which also was noted during his military separation examination. Regardless of the RO's characterization of his claimed disability at that time, he did not appeal that initial decision denying his claim. The Veteran subsequently filed a claim for service connection for PTSD, specifically, in January 2003. In a September 2003 rating decision, the RO denied his claim on the grounds that his service treatment records (STRs) "show[ed] no reference to treatment for PTSD," but also because the other mental health issues he had experienced during his service, though documented, were determined to have been due to his passive-aggressive personality disorder - so owing to a congenital or developmental disorder that generally was not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.127, 4.9. In response, he started but did not complete the steps necessary to perfect his appeal of even that more recent decision. See 38 C.F.R. § 20.200 (indicating an Appeal to the Board consist of the timely filing of an NOD and, after receipt of a Statement of the Case (SOC), completed by the timely filing of a Substantive Appeals (VA Form 9 or equivalent statement)). In particular, a Substantive Appeal was not filed, so even that more recent decision is a final and binding determination based on the evidence of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103. On March 11, 2005, the Veteran submitted yet another claim for service connection for PTSD, which again was appropriately recharacterized as in actuality a petition to reopen this claim since it had been previously considered, denied, and not appealed (both on its underlying merits as well as the prior petition to reopen based on new and material evidence). In September 2005, the RO reopened the claim, but then denied it on the grounds that the evidence did not show that PTSD was incurred or aggravated by his military service. In March 2006, he submitted additional evidence regarding this claim. In a September 2006 rating decision, the RO advised that his claim had been reconsidered, but again denied, on the grounds that there was no link between his then current anxiety attacks and any diagnoses in service, also because he did not meet the criteria for PTSD "based upon the insufficient frequency and severity" of his symptoms. But unlike in years past, he appealed the decision. And, as already mentioned, the Board eventually reopened this claim and granted it in August 2009. Subsequently, in the October 2009 rating decision on appeal, the RO implemented the Board's August 2009 grant and assigned an initial 50 percent rating for the PTSD and associated symptoms (including the anxiety and depression) effective March 11, 2005, the date of receipt of the most recent petition to reopen this claim for service connection for PTSD and attendant symptoms on the basis of new and material evidence. During his February 2015 hearing before this Board requesting an earlier effective date, the Veteran pointed out that he had filed an earlier claim for PTSD in 1992, so for the same disability. And although that prior claim admittedly was considered and denied, he steadfastly maintained that he had kept the same claim open during the many years since, so had not let any prior adjudication of this claim become a final and binding determination, therefore is entitled to an effective date back to that earlier claim. He testified that he had applied for this benefit again and was again denied, but that he had appealed that decision, as well, and he disputed any notion that he had not. In a March 2015 decision, the Board denied this claim for an earlier effective date for the award of PTSD and related symptoms based on a finding that the case was one such that new and material evidence was necessary to reopen a previously-denied claim and March 11, 2005 was the date of receipt of the Veteran's most recent petition to reopen this claim. The Board found that the applicable statute and regulation provided that the earliest effective date that he could receive based on new and material evidence is the date of receipt of his petition to reopen the claim, that is, March 11, 2005. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (b)(2)(i), (r), (q)(1)(ii). In its July 2016 memorandum decision, however, the Court vacated and remanded the Board's March 2015 decision denying this earlier-effective-date claim based on the Board's failure to consider the provisions of 38 C.F.R. § 3.156(c)(1) (providing that "...at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim...".). The Board also did not address whether this regulation is inapplicable in this case due to the provisions of § 3.156(c)(2), which bar an earlier effective date where VA could not have obtained the applicable service department records when it first decided the claim "because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the [JSRRC], or from any other source." 38 C.F.R. § 3.156(c)(2) (2016). In hindsight, the Board finds that 38 C.F.R. § 3.156(c)(1), providing for reconsideration rather than reopening of a claim for service connection based on the receipt of relevant official service department records applies to this case. The bar to an earlier effective date explained in 38 C.F.R. § 3.156(c)(2) does not apply, as the Veteran's claim was pending prior to the passage of the regulatory amendment adding this provision. In Cline v. Shinseki, 26 Vet. App. 18, 26 (2012), the Court held that the October 6, 2006 amended version of 38 C.F.R. § 3.156(c)(2) constituted a substantive rule change when it was added, and that where a claimant was granted service connection for PTSD prior to the October 2006 effective date of the new version of 38 C.F.R. § 3.156(c), the new version of that regulation could not be applied retroactively. The Court reasoned, in part, that retroactive application of the provision to a claimant's prior conduct would impose a penalty. Id. at 26-27. The Veteran's petition to reopen his claim for service connection for an acquired psychiatric disorder that led to the eventual award of service connection in this case was filed on March 5, 2005, so was pending on October 6, 2006. Thus, the pre-amendment version of 38 C.F.R. § 3.156(c) is the appropriate version of the regulation that is potentially applicable. Under the pre-amendment version of 38 C.F.R. § 3.156(c), where the new and material evidence added to the record consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the AOJ. 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. Id. Essentially, prior to the October 2006 amendment of 38 C.F.R. § 3.156(c), 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 and assign an effective date potentially as early as the date that the initial claim was filed. See Cline at 23. In this case, the Veteran did not provide sufficient information for VA to identify and obtain the records submitted by the JSRRC prior to August 2006 and May 2007. While the post-amendment version of 38 C.F.R. § 3.156(c) would prohibit reconsideration of the previously-decided claim based on the newly-obtained relevant service records, here, his previous failure to provide the necessary information to verify his stressors does not prevent VA from reconsidering his previously-decided claim under the pre-amendment version of the regulation. The Board therefore may assign an effective date potentially as early as the date his initial claim was filed. Cline at 23. Indeed, the effective date may extend back to the day following his discharge from service when he returned to life as a civilian. The official service department records provided by the JSRRC in August 2006 and May 2007 were the type of records contemplated by 38 C.F.R. § 3.156(c). Thus, an earlier effective date back to the original date of claim (or conclusion of service) is warranted under 38 C.F.R. § 3.156(c) (2005). As the claim is being reconsidered, not reopened, the effective date is affixed by operation of 38 C.F.R. § 3.400(b)(2)(i) for entitlement to service connection arising on a direct-incurrence basis. The effective date to be assigned is the day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service. This occurred in this instance as the Veteran's initial claim for what amounts to the same disability was filed in July 1969, so within a year of his separation from active duty service on June 4, 1969. Therefore, an earlier effective date back to that point in time is warranted. ORDER An earlier effective date of June 5, 1969 (the day following discharge from service) is granted for the award of service connection for PTSD and related symptoms, including anxiety and depression, subject to the statutes and regulations governing the payment of retroactive compensation. REMAND In light of the Board's grant of an earlier effective date of June 5, 1969, for the award of service connection for PTSD and its related symptoms, the derivative claim for a higher initial rating for this disability must be remanded to allow the AOJ to accordingly rate this disability from this earlier point in time. The Veteran's pending appeal for a TDIU prior to January 28, 2010, also is inextricably intertwined with the initial rating to be assigned for his service-connected PTSD and related symptoms as of June 5, 1969. Accordingly, the case is REMANDED for the following action: 1. Assign an appropriate initial disability rating for the Veteran's service-connected PTSD and related symptoms, including anxiety and depression, as of June 5, 1969 (i.e., as of the day following his discharge from service). 2. Then, if he is not satisfied with this initial rating as of this earlier point in time, send him a Supplemental SOC (SSOC) concerning this claim and give him and his attorney opportunity to respond to it before returning file to the Board for further consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs