Citation Nr: 1745570 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 07-01 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an effective date prior to July 15, 2004, for the grant of service connection for panic disorder without agoraphobia and non-military related posttraumatic stress disorder (PTSD), based upon substitution. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and the Veteran ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to March 1975. He died in February 2013. The appellant is the Veteran's widow. She has been substituted for the Veteran for the issue on appeal. This case comes to the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Boston, Massachusetts, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2009, a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. In a June 2009 decision, the Board determined the proper effective dates for grants of service connection for status post lytic destructive lesion involving the right mandible, a right arm disability, and gastroesophageal reflux disease (GERD). At that time, the matter of an effective date earlier than July 15, 2004, for a grant of service connection for the Veteran's psychiatric disability was remanded for further development of the evidence. This has been accomplished and the case has been returned for further appellate consideration. FINDING OF FACT VA received the Veteran's claim for service connection for panic disorder without agoraphobia and non-military related PTSD as secondary to his service-connected histiocytic lymphoma on June 17, 1991, and the was not adjudicated until the September 2005 rating decision, which awarded service connection. CONCLUSION OF LAW The criteria for an effective date of June 17, 1991, but not earlier, for the grant of service connection for panic disorder without agoraphobia and non-military related PTSD, as secondary to his service-connected histiocytic lymphoma, have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Substitution If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. 38 U.S.C.A. § 5121A(a). Here, the Veteran died in February 2013. At the time of his death, the Veteran had perfected his appeal. In March 2013, his surviving spouse filed her application for Dependency and Indemnity Compensation (DIC), including for service connection for the cause of death. In an October 2013 rating decision, the RO granted the claim for service connection for the cause of death. In August 2017, the appellant was officially determined to be eligible for substitution. See 38 U.S.C.A. § 5121A(a)(1). Therefore, the Board finds that the appellant has been properly substituted as the claimant for purposes of processing the Veteran's claim to completion. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2016). This earlier effective date claim arises from an appeal of the initial effective date assigned following the grant of service connection. The United States Court of Appeals of Veterans Claims (Court) has held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Thus, no further notice is needed. VA has a duty to assist in the development of the claim. This duty includes assisting in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). In this case, all necessary development has been accomplished and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination, including those from the Social Security Administration (SSA). The Veteran's and appellant's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that, following the March 2009 remand, no available outstanding evidence has been identified. The Veteran and appellant were accorded ample opportunity to present evidence and argument in support of the claim. See 38 C.F.R. § 3.103. The appellant retained the services of a representative, and she and the Veteran had the opportunity to testify at a personal hearing before a Veterans Law Judge. Accordingly, the Board will address the claim on appeal. Earlier Effective Date The effective date of an award is generally the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2016). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155. In this case, the RO awarded service connection for the Veteran's psychiatric disability on the basis that the panic disorder without agoraphobia and non-military related PTSD was secondary to service-connected histiocytic lymphoma. At that time, an effective date of July 15, 2004 was assigned as this was considered the date of receipt of the Veteran's statement indicating his intent to file a claim for service connection. 38 C.F.R. § 3.400(b)(2)(ii). The Veteran, and now the appellant, contend that an earlier effective date should be awarded based on a 1991 claim for secondary service connection that was filed, but that the RO never adjudicated. After review of the record, the Board agrees with the appellant. The record shows that service connection for histiocytic lymphoma was granted by the RO in an October 1990 rating decision. On June 17, 1991, VA received a notice of disagreement from the Veteran regarding the rating assigned for the service-connected lymphoma. At that time, the Veteran specifically contended that the rating for his lymphoma should include ratings for additional disabilities that were secondary thereto. He specifically mentioned psychological problems and stated that "I request service connected ratings for the adjunct problems listed above." This represents an informal claim for entitlement to service connection under regulations in effect at that time. While the RO adjudicated the other claims, including matters related to the rating of his service-connected lymphoma, the RO did not address the Veteran's claim for service connection for a psychiatric disorder as secondary to his service-connected lymphoma, despite repeated correspondence from him and his representative requesting consideration of service connection through October 1991, until the September 2005 rating decision that awarded service connection. The record shows that on June 17, 1991 VA received the Veteran's informal claim for entitlement to service connection for a psychiatric disability as secondary to his service-connected lymphoma along with his notice of disagreement for the evaluation assigned for the lymphoma. While the RO adjudicated the other claim, the RO did not address the Veteran's claim for service connection for a psychiatric disability as secondary to his service-connected lymphoma until the September 2005 rating decision that awarded service connection. As the claim for service connection for panic disorder without agoraphobia and non-military related PTSD as secondary to histiocytic lymphoma remained pending until the July 2005 rating decision, an earlier effective date of June 17, 1991, is warranted. See 38 C.F.R. § 3.400. An even earlier effective date is not warranted, however, as there is no communication from the Veteran or his representative prior to that date can be construed as a claim for service connection for a psychiatric disability. See 38 C.F.R. § 3.155. Moreover, the appellant has not asserted that the Veteran filed a claim for service connection for a psychiatric disorder prior to June 1991. Rather, the recent correspondence from the appellant and her representative in support of her claim for an earlier effective date have been copies of the October 1991 correspondence from the Veteran's representative. As such, an effective date prior to June 17, 1991, is not supported by the evidence of record. In conclusion, the Board finds that an earlier effective date of June 17, 1991, is warranted for the grant of service connection for panic disorder without agoraphobia and non-military related PTSD, as secondary to histiocytic lymphoma. To this extent, the appeal is granted for substitution purposes. ORDER An effective date of June 17, 1991, for the grant of service connection for panic disorder without agoraphobia and non-military related PTSD, based upon substitution, is granted, subject to the controlling regulations governing the payment of monetary benefits. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs