Citation Nr: 1738821	
Decision Date: 09/13/17    Archive Date: 09/22/17

DOCKET NO.  12-02 819	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUE

Entitlement to an effective date earlier than October 31, 2005, for the grant of service connection for generalized anxiety disorder (GAD)


REPRESENTATION

Appellant represented by:	Terri Perciavalle, Agent


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel


INTRODUCTION

The Veteran had active military service from February 1943 to October 1945.

Historically, the record reflects that, in a September 1946 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, denied the Veteran's July 1946 claim of entitlement to service connection for nervousness.  Although he was notified of that denial in a September 1946 letter, and of his appellate rights, he did not initiate an appeal.

This appeal to the Board of Veterans' Appeals (Board) arose from a July 2014 rating decision by the Pittsburgh RO, which, in pertinent part, determined that a September 2006 rating decision was not clearly and unmistakably erroneous for not assigning an effective date earlier than October 31, 2005, for the awarded initial disability rating of 30 percent for GAD.  In response the Veteran filed a Notice of Disagreement (NOD) in July 2014.  In June 2015, the RO issued him a Statement of the Case (SOC), and he filed a Substantive Appeal (VA Form 9) in July 2015 to complete the steps necessary to "perfect" his appeal of this claim to the Board.

In July 2012, in support of his claim, the Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing.  A transcript of the hearing is of record.

This case was last before the Board in February 2016, when it determined that the September 2006 rating decision did not involve clear and unmistakable error (CUE) in granting an effective date of October 31, 2005, for GAD.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court/CAVC).  In a June 2017 Memorandum Decision, the Court indicated that the Board had erred when it determined that official service department records, which existed but had not been associated with the claims file when VA first decided the claim, were not relevant and, consequently, did not require reconsideration of the Veteran's 1946 claim under 38 C.F.R. § 3.156(c).  To this end, the Court remanded the matter to the Board for readjudication in accordance with its instructions.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran served on active duty from February 22, 1943 to October 18, 1945.

2.  On July 16, 1946, VA received the Veteran's claim of entitlement to service connection for nervousness; this was within one year after the date of separation.

3.  In a September 1946 rating decision, the RO denied the Veteran's July 1946 service connection claim; although notified of the denial, and of his appellate rights, the Veteran did not initiate an appeal.

4.  New evidence received since VA's September 1946 rating decision, however, includes relevant official service department records that existed but had not been associated with the claim file, so not considered, when VA first decided this claim.


CONCLUSION OF LAW

The criteria are met for an earlier effective date of October 19, 1945, but not prior, for the grant of service connection for GAD.  38 U.S.C.A. §§ 5110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156, 3.400 (2016).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).  In this case, however, the Board is fully granting the benefits sought on appeal.  Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error would be inconsequential and, thus, at most nonprejudicial, i.e., harmless error.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant attacking the agency's decision to show the error instead was harmful by at least providing an explanation as to how the error caused harm; there is not a presumption that it did); see also 38 U.S.C.A. § 7261(b)(2); 38 C.F.R. § 20.1102.

II.  Reconsideration

The Veteran's claim of entitlement to service connection for nervousness was initially denied in a September 1946 rating decision.  At the time of that decision, the evidence in the file consisted of his service treatment records and service personnel records.  Although notified of that denial in a letter dated in September 1946, he did not initiate an appeal.  Moreover, no additional evidence was received within the one-year appeal period following notification of that denial.  See 38 C.F.R. § 3.156(b).  Typically, this fact would render that decision final and binding based on the evidence then of record, and not subject to revision on the same factual basis.  See 38 U.S.C.A. § 7105 (b); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103.  In this circumstance, VA could only reopen and review this claim upon receipt of new and material evidence.  See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).


However, there is an exception to this general rule.  Namely, 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, notwithstanding the requirement that new and material evidence must first be received.  38 C.F.R. § 3.156(c).  According to 38 C.F.R. § 3.156(c)(i) and (ii), official service department records include STRs.  See also Vigil v. Peake, 22 Vet. App. 63 (2008) (explaining that unit records provided to the RO by the U. S. Armed Services Center for Research of Unit Records (USASCRUR), now the Joint Services Records Research Center (JSRRC), constitute official service department records for purposes of new and material evidence, thus requiring de novo review or reconsideration, rather than review as a claim to reopen).

In this case, additional evidence was associated with the claims file following the September 1946 denial.  Specifically, in May 2006, the Veteran submitted service personnel records, including a February 1945 record indicating the Veteran received rest and relaxation (R&R) for 8 days.  While the February 1945 service personnel record does not explicitly demonstrate in-service treatment for a nervous condition, the record undoubtedly tends to corroborate the Veteran's contention that he had been "sent to rest camps."  See July 1946 VA 21-526.  These records existed at the time of the September 1946 denial, but were not associated with the claims file or considered by the RO until the September 2006 rating decision.  Pursuant to 38 C.F.R. § 3.156(c), the additional STRs received require reconsideration of the claim - which, effectively, renders the prior denial non-final.  Therefore, an analysis of the claim in light of 38 C.F.R. § 3.156(a) is unnecessary and, thus, the Board will reconsider the prior decision and determine whether an effective date earlier than  October 31, 2005 for grant of service connection for GAD is warranted.

III.  Effective Date Prior to October 31, 2005

In a September 2006 rating decision, the Veteran was granted service connection for Generalized Anxiety Disorder (GAD) with an assigned effective date of October 31, 2005.  He is seeking an earlier effective date for this award.

Generally, except as otherwise provided, the effective date for a grant of service connection will be the day following separation from active military service or the date entitlement arose, if a claim is received within one year of separation.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit.  Id.

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a).  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra.

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show.  The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran.

As noted above, the Veteran asserts that he is entitled to an earlier effective date for the grant of service connection for GAD pursuant to 38 C.F.R. § 3.156(c).  Having carefully considered this claim, in light of the evidence of record and the applicable law, the Board concludes that an earlier effective date is warranted.

Effective October 6, 2006, 38 C.F.R. § 3.156(c) was amended.  The pre-amendment version of 38 C.F.R. § 3.156(c) provided, in pertinent part:

Where new and material evidence 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 adjudicating agency of original jurisdiction (AOJ).  This comprehends official service department records which presumably have been misplaced and have not been located and forwarded to the Department of Veterans Affairs . . . . Where such records 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)

In June 2005, the Secretary proposed to amend 38 C.F.R. § 3.156(c) to clarify the rules regarding reconsideration of decisions on the basis of newly discovered service department records.  In the proposed rule changes, VA discussed the pre-amendment version of 38 C.F.R. § 3.156(c) and a related effective date provision, 38 C.F.R. § 3.400 (q)(2).  VA noted that, in practice, when VA receives service department records that were unavailable at the time of the prior decision, VA may reconsider the prior decision, and the effective date assigned may be related back to the date of the original claim, or the date entitlement arose, whichever is later.  See 70 Fed. Reg. 35,388 (June 20, 2005).

VA amended 38 C.F.R. § 3.156(c) by adding subsection (c)(1), which provides:

Notwithstanding any other section in this part, 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 which existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.  38 C.F.R. § 3.156(c)(1).

Moreover, VA explicitly limited 38 C.F.R. § 3.156 (c)(1) through the creation of 38 C.F.R. § 3.156(c)(2), which provides:

Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department...[.]  38 C.F.R. § 3.156(c)(2).

In the proposed rule, VA noted that the limitation of subsection (c)(2) allowed 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, but limited by the extent to which the claimant had cooperated with VA's efforts to obtain relevant records.  See 70 Fed. Reg. at 35, 388.

The Court has held that the clarifying statements in the proposed rule amending 38 C.F.R. § 3.156 (c) govern the interpretation of the pre-amendment version of the regulation.  See Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011).  Moreover, either under the pre-amended or amended regulation, a claimant whose claim was reconsidered based on newly discovered service department records could be entitled to an effective date as early as the date of the original claim.  Id.

As noted above, the amendments to 38 C.F.R. § 3.156(c) became effective October 6, 2006, after the Veteran's claim which resulted in the grant of service connection for GAD was received.  Under the pre-amendment version 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.  See Cline v. Shinseki, 26 Vet. App. 18, 23 (2012).  The Court in Cline found that the addition of subsection (c)(2) 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 further determined that the amendments to 38 C.F.R. § 3.156(c) were not expressly made retroactive.  Id. at 26.

In this case, the pre-amendment version of 38 C.F.R. § 3.156(c), which is not affected by any limitations on its application, is more favorable to the Veteran, and, consequently, will be applied by the Board.  Pursuant to that regulation, as fully discussed in the above section, the Board will reconsider the initial September 1946 denial in light of the February 1945 service personnel record indicating the Veteran received rest and relaxation (R&R).  Under the pre-amendment version of 38 C.F.R. § 3.156 (c), the Veteran's claim must be reconsidered from the date of the initial July 1946 service connection claim, regardless of whether those service documents were identifiable by the statements or evidence provided by the Veteran at that time.

As service connection for GAD is being reconsidered since the initial date of claim, the Board must consider when the Veteran's service connection claim was filed and when entitlement arose.  Generally, except as otherwise provided, the effective date for a grant of service connection will be the day following separation from active military service or the date entitlement arose, if a claim is received within one year of separation.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.

With respect to when the Veteran's claim was initially filed, the Board notes that the Veteran's service connection claim for "nervous condition" was received on July 17, 1946.  While the Veteran did not specifically claim service connection for GAD at that time, VA finds that the Veteran's claim for "nervous condition" reasonably encompasses a claim for an acquired psychiatric disorder order, which was ultimately diagnosed as GAD.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Therefore, unless it is shown that the Veteran's entitlement to service connection arose after July 1946, an effective date of October 19, 1945 will be the assigned, as the Veteran's claim was received within one year following separation from service and October 19, 1945 is the day following his separation.  38 C.F.R. § 3.400(b)(2).

The Veteran was afforded a VA examination in April 2006.  The Veteran reported his plane being shot down over a small island in the Mediterranean Sea on May 15, 1944.  Prior to returning to his unit, the Veteran indicated that he had attended several rest camps, where he described feeling anxious and having difficulty sleeping during this period.  The examiner diagnosed the Veteran with generalized anxiety disorder and bipolar disorder.  The examiner noted that the Veteran's history reflects long standing symptoms of GAD, which began during his military service and are characterized by excessive worry, irritability, restlessness, and chronic sleep disturbance.  Ultimately, the examiner opined that it is at least as likely as not that GAD is a result of the Veteran's military experience.  However, the examiner further indicated that the recently diagnosed bipolar disorder is not secondary to GAD, and was not caused by or a result of his military service.

Similarly, the Veteran was afforded a VA examination in July 2014 to determine the nature and severity of several nonservice-connected disabilities.  The examiner noted that the Veteran was service-connected for GAD "with the first symptoms of anxiety documented while on active military duty in 1944."

The Board notes that the April 2006 and July 2014 VA examination reports are highly probative, as they were prepared by a medical professional who reviewed the Veteran's pertinent medical history, conducted an in-person evaluation, and clearly assessed the nature of his acquired psychiatric disability.  There is no indication that either examiner was not fully aware of the Veteran's past medical history or that any relevant fact was misstated.  Indeed, both of the examiner's opinions are based on reliable principles and are supported by other evidence of record.


In light of the foregoing reasons and bases, the evidence supporting the claim is, at the very least, as probative (meaning as competent and credible) as the evidence against the claim.  Thus, the Board is of the opinion that the point of equipoise has been reached in this matter.  Resolving all reasonable doubt in favor of the Veteran, the Board finds, on the whole, the evidence of record establishes that the Veteran met the criteria for service connection for GAD as early as 1944, and, therefore, his entitlement to service connection arose at that time.  When taking into consideration the April 2006 VA examiner's opinion, indicating that the Veteran's symptoms of GAD began during his service, with the Veteran's statement on his July 1946 claim noting that he was "sent to 5 rest camps for [nervous] condition-Rome, Naples, Isle of Capri, Cairo, [and] Florence," the evidence is at least in equipoise regarding whether the Veteran's GAD manifested in or around 1944.  As service connection cannot be granted prior to the day following separation from active military service, the Board finds that an earlier effective date of October 19, 1945, but no earlier, is warranted.  38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2).

Undoubtedly, further medical inquiry can be undertaken with a view towards further developing the claim.  However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted, and indicated that it would not be permissible to undertake further development if the sole purpose was to obtain evidence against an appellant's claim.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim).

Accordingly, the Board finds that an effective date of October 19, 1945, but no earlier, for the grant of service connection for GAD is warranted.  However, the preponderance of the evidence is against the assignment of any earlier effective date.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).



ORDER

An earlier effective date of October 19, 1945, but not prior, is granted for service connection for GAD.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs