Citation Nr: 1800414	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  11-16 975	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to an effective date prior to November 2, 2009 for the grant of service connection for posttraumatic stress disorder (PTSD) with major depression.


REPRESENTATION

Appellant represented by:	Robert Chisholm, Esq.


WITNESSES AT HEARING ON APPEAL

Veteran and spouse


ATTORNEY FOR THE BOARD

A. Solomon, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from June 1979 to June 1983 and served in the United States Army Reserve from March 1987 to March 1993 with confirmed period of active duty for training from January 1988 to March 1989 and for approximately three weeks in June 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which reopened and granted the Veteran's claim for service connection for PTSD, effective November 2, 2009.

In March 2012, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

The Board denied the claim on appeal in a May 2014 decision.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  The parties filed a Joint Motion for Remand (Joint Motion) in August 2015, which was granted by Order of the Court that same month.  Accordingly, the appeal was remanded to the Board for further consideration.

The Board again denied the claim in a March 2016 decision.  The Veteran appealed this decision to the Court, who in a May 2017 Memorandum Decision and Order, vacated the March 2016 decision and remanded the matter to the Board for further consideration. 


FINDINGS OF FACT

1.  No communication or medical record received prior to November 2, 2009, may be interpreted as a formal or informal petition to reopen the claim of entitlement to service connection for PTSD with major depression.

2.  The August 2010 rating decision granting service connection for PTSD was not based, all or in part, on official service department records received and associated with the claims file in December 2009. 


CONCLUSION OF LAW

The criteria for an effective date earlier than November 2, 2009 for the award of service connection for PTSD with major depression have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

With respect to the present appeal, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).

The Veteran's earlier effective date claim arises from his disagreement with the effective date assigned for the grant of service connection for PTSD with major depression.  Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

The duty to assist the Veteran has also been satisfied in this case.  VA has obtained the Veteran's service treatment records, service personnel records, and VA treatment records.  It has afforded the Veteran the opportunity to present testimony, written statements, and evidence.  The Veteran and his representative have submitted multiple written statements, private treatment records, and other documentation pertaining to his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 

The Board is cognizant that evidence of record showed the Veteran was awarded disability benefits from the Social Security Administration (SSA) in 2012.  There is no evidence, and the Veteran has not indicated that his SSA benefits are based on his service-connected psychiatric disability or that any SSA records would be relevant in regard to his earlier effective date claim.  Furthermore, the evidence of record does not indicate that SSA records would help the Veteran substantiate his claim, as the outcome of this appeal turns on determinations as to the dates that the service connection claims were filed and the evidence upon which the award of service connection was based.  Therefore, the Board finds that VA does not have a duty to attempt to obtain the SSA records.  Golz v. Shinseki, 590 F.3d 1317   (Fed. Cir. 2010).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486.

The Veteran seeks entitlement to an effective date prior to November 2, 2009 for the award of service connection for PTSD with major depression.

The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an award of disability benefits for a claim reopened after a final disallowance will be the date of receipt of the claim to reopen or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (2017).

The terms "claim" and "application" mean 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) (2017).  Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2017).  A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a) (2017). 

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (2017). 

In Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009), the Court held that an informal claim must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought.  See also Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate original claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). 

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 paragraph (a) of 38 C.F.R. § 3.156.  Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of 38 C.F.R. § 3.156 are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(1).

An award based in all, or in part, upon such service department records identified by 38 C.F.R. § 3.156(c)(1) will be effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date that may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3).

Only if VA grants benefits resulting from reconsideration of the merits under § 3.156(c)(1) must it consider an earlier effective date under subsection (c)(3). Blubaugh v. McDonald, 773 F.3d 1310, 1314 (Fed. Cir. 2014).

The Veteran originally filed a claim for entitlement to service connection for PTSD with major depression in February 2001.  In a December 2001 rating decision, the RO denied entitlement to service connection for PTSD with depression.  The RO determined that available evidence did not include credible evidence that a claimed stressor occurred, and was insufficient to confirm that the Veteran actually engaged in combat or was a prisoner of war.  It was noted that the service department was unable to corroborate the claimed stressor and also that the evidence did not show a confirmed diagnosis of PTSD. The Veteran did not initiate a timely appeal for that matter.  There is also no indication that additional evidence was received between December 2001 and December 2002 which would have necessitated a reconsideration of the issue.  38 C.F.R. § 3.156(b); Buie v. Shinseki, 24 Vet. App. 242 (2010).  Thus, the December 2001 rating decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 , 20.302, 20.1103.

The Veteran submitted a stressor statement with supporting documentation in November 2004.  In December 2004, the Veteran sought to reopen the claim of entitlement to service connection for PTSD and depression.  In a May 2005 rating decision, the RO denied reopening the claim.  The May 2005 rating decision also became final, as the Veteran did not submit new and material evidence within one year or perfect an appeal.  The Board is cognizant that additional service treatment records were incorporated into the claims file and were considered in the May 2005 rating decision.  However, the application of 38 C.F.R. § 3.156(c) is not warranted in this instance, as the May 2005 rating decision denied the claim, became final, and is not currently on appeal. 

In August 2008, the Veteran again sought to reopen his claim.  He received an appropriate VCAA notice letter in August 2008 informing him that he should submit new and material evidence in support of his claim to reopen.  The Veteran did not respond or submit new and material evidence.  In an October 2008 letter, the RO denied reopening his claim.  The October 2008 determination also became final, as the Veteran did not submit new and material evidence within one year or perfect an appeal. 

On November 2, 2009, the Veteran filed a claim to reopen the matter of entitlement to service connection for PTSD and major depression, along with numerous items of supporting evidence.  In December 2009, the Veteran's military personnel file along with 2 sheets of microfiche containing additional service personnel records were associated with the record. 

In an August 2010 rating decision, the RO granted entitlement service connection for PTSD with major depression, assigning a 50 percent rating effective November 2, 2009, the date VA received the Veteran's claim to reopen the issue.  The RO indicated that the Veteran had provided court documents and personal letters to confirm that his claimed in-service sexual trauma had occurred.  It was further noted that a VA examiner had diagnosed the Veteran with PTSD with major depression related to this military trauma in an August 2010 VA examination report. 

In November 2010, the Veteran filed a timely notice of disagreement raising an appeal as to the effective date assigned in the August 2010 rating decision.  He asserted that his benefits should go back to February 2001, when he filed his original claim for service connection.

As noted above, the Board denied the claim on appeal by a May 2014 decision, finding that entitlement to an effective date prior to November 2, 2009 for the award of service connection for PTSD with major depression was not warranted.  In the August 2015 Joint Motion, it was noted that the Board's statement of reasons or bases as to its consideration of the evidence of record, to include the service personnel records obtained in December 2009, was inadequate.  The parties agreed that it was not clear whether the Board had considered service personnel records contained on microfiche in the record, prior to making the finding that the service personnel records obtained in December 2009 did not contain documents relevant to the claim for PTSD such that 38 C.F.R. § 3.156(c) was not applicable.

In a March 2016 decision, the Board again found that entitlement to an effective date prior to November 2, 2009 for the award of service connection for PTSD with major depression was not warranted.

The Veteran has asserted that the grant of service connection should be effective from February 2001, when he originally submitted a claim for entitlement to service connection for PTSD and depression.  He reported that VA did not properly undertake efforts to verify his in-service stressor, given that the lack of a verifiable stressor was the basis for the initial denial of his claim.  Here, that original claim was the subject of a December 2001 rating decision, which became final because the Veteran did not submit new and material evidence within a year or perfect an appeal of the decision.  Likewise, the record reveals that each of the Veteran's subsequent claims to reopen were acted upon and the Veteran did not submit new and material evidence nor perfect appeals following the RO's May 2005 and October 2008 denials.  Therefore, the record does not reflect that there was a communication prior to November 2, 2009, which could be construed as a claim to reopen which was not acted upon by VA. 

The questions of fact upon which the present appeal turn are 1) whether the official service department records associated with the file in December 2009 are relevant to the prior final decision(s) and 2) whether the award of service connection in the August 2010 rating decision was based "all or in part" on the newly-obtained official service department records.  If both questions are answered in the affirmative, the appropriate effective date for the award of service connection would be the later of the date entitlement arose or the date VA received the previously-decided claim.

The service personnel records, including two sheet of microfiche, were printed and associated with the claims file.  These records included enlistment documents, copies of the Veteran's enlistment examination and medical history, general administrative data, and a folder titled "Commendatory and Derogatory Data," whose contents appear to have consisted of award documents, including a Certificate of Good Conduct.  These records do not contain information specific to any "experiment" or treatment by the offending medical officer ("military assailant"), nor do they demonstrate any behavioral problems the Veteran may have experienced during service, or any other potential markers of PTSD.  Such service personnel records are not found contain documents relevant to the original denial of service connection for PTSD such that 38 C.F.R. § 3.156 (c) would be applicable.  

Assuming without deciding that the service personnel records associated with the claims file in December 2009 were relevant to the Veteran's claim for service connection for PTSD, the Board again finds that the August 2010 allowance of service connection for PTSD was not based in whole or in part on evidence contained within these service personnel records. 

Review of the August 2010 rating decision clearly showed that the RO relied on documentation submitted by the Veteran concerning his in-service stressor as well as findings contained in an August 2010 VA examination report.  The Evidence list of the August 25, 2010 rating decision includes the following:  VA Form 21-4138, Statement in Support of Claim, received November 2, 2009, November 20, 2009, and February 16, 2010; court documents regarding the Veteran's military assailant; statement in support of claim dated November 2008; private treatment records from March 2006; letters written by the Veteran's military assailant; VA treatment records from November 2008 to April 2010; a duty to assist letter from VA dated November 2009; and a VA examination report from August 2010. 

In the body of the August 2010 rating decision, the RO specified that following examination in August 2010, the VA examiner diagnosed the Veteran with PTSD with major depression related to his military personal trauma, and that the two conditions were inextricably linked.  It was noted that the examiner stated that the Veteran suffered from severe depression and moderate anxiety caused by the trauma and humiliation the Veteran suffered as a young man during his time in the Marines.  There is nothing in the rating decision that indicates that the military personnel records newly-associated with the claims file in December 2009 played any part in the RO's award of service connection.  Rather, the decision clearly shows that the RO relied on lay statements made and documentation submitted by the Veteran concerning his in-service stressor, as well as the findings contained in the August 2010 VA examination report.

The Board is cognizant of the attenuated argument submitted by Veteran's attorney asserting the VA examiner's presumed review of the service personnel records during the August 2010 examination meant that those service personnel records served as partial basis for the positive nexus opinion and the eventual grant of service connection for PTSD.  However, the Board has determined that there was absolutely no indication that those newly-received service department records played any role in the medical opinion rendered by the August 2010 VA examiner and the eventual award of service connection in the August 2010 rating decision. 
The VA examiner did not reference the service personnel records associated with the file in December 2009, or any particular information contained therein specifically; the report rather reflects that the mental status evaluation performed at the examination and other evidence of record, such as the Veteran's reports of his in-service trauma formed the basis of the medical opinion.  

The August 2010 examination report contains the following information concerning the Veteran's military service: 1) dates of service; 2) branch of service and honorable character of discharge; 3) highest rank obtained and rank at discharge; 4) military occupational specialty; 5) legal or other problematic consequences of alcohol use or abuse during service; 6) no combat experience; and 7) disciplinary infractions.  While conceivable that service personnel records generally might include information pertaining to legal problems and disciplinary infractions such as Article 15s, a close review of the Veteran's service personnel records received in December 2009 do not contain such information.  Even if one were to assume that such records were present but were among the numerous illegible pages, there is no way that the examiner could have wholly or partially based his opinion on such indecipherable evidence.  Rather, the Board notes that the information regarding the Veteran's in-service disciplinary infraction likely either came from the Veteran's own statements made to the VA examiner, or potentially from a prior military history given at a February 2009 VA mental health consult at which the Veteran stated that he had "received one Article 15 for 'disobedience of a lawful order and disrespect to a senior NCO.'"  At the examination, the Veteran reported a drunk driving incident in 1984 where he drove his car into a pole because he did not care if he lived or died. 

Additionally, the Veteran's branch of service, dates of service, character of discharge, and rank were all confirmed by the National Personnel Records Center in a May 2001 response to the RO's Request for Information.  Finally, there is nothing to indicate that the service personnel records contributed in any way to the VA examiner's understanding concerning the Veteran's reported sexual assault stressor.  The examiner noted the Veteran's description of his stressor relating to sexual assault by a superior officer over the course of about 2 years and the fact that this individual is now serving a life sentence for multiple sexual crimes.  Such details were most likely gleaned from the examiner's interview of the Veteran, the court documents submitted concerning the assailant's crimes against others, and the Veteran's detailed reports made to VA mental healthcare providers and submitted to VA by the Veteran as statements in support of his claim for service connection.  The Board notes that the examination report states that the "Veteran was subjected to sexual trauma by a superior officer in a case that is well documented for about 2 years...," but finds that the examiner's reference that the case is "well documented" must refer to the Veteran's detailed and consistent reports of the assaults contained in the record, as well as corroborating evidence from the court documents and in personal letters sent to the Veteran by the assailant.  The service personnel records contain nothing that could be considered "documentation" of the Veteran's in-service stressors.

As there is nothing in the service personnel records at issue even conceivably indicative of an in-service personal assault or documenting medical treatment of the Veteran by the assailant, and the Veteran's period and character of service had already been confirmed by the NPRC, a great preponderance of the evidence weighs against a finding that the August 2010 VA examiner's opinion was based either in whole or in part on the service personnel records received in December 2009.  The RO's reliance on the examiner's opinion thus did not in turn result in the August 2010 grant of service connection being based in whole or in part on these service personnel records.     

The Board acknowledges the Court's conclusion in its May 2017 memorandum decision that the "court documents and personal letters" considered by the RO in its August 2010 decision supported the Veteran's allegations that he was raped, but "none of the documents evidence that the rape occurred during service."  It appears the Court may have misinterpreted the Board's prior reference to "personal letters" as only pertaining to the letters sent to the Veteran by his military assailant, which admittedly support the Veteran's description of personal assaults, but do not specifically reference an in-service assault(s).  The Court continued that "[i]t appears that both the August 2010 examiner and the RO must have relied upon other evidence to grant service connection."  This is undoubtedly true, as both relied upon the Veteran's lay statements describing the personal assaults he was subject to during service, as well as when and where they occurred.  The Veteran's lay statements, made directly to the VA examiner and contained within written correspondence submitted by the Veteran, including a detailed account from the Veteran in October 2004 specifying the dates between which such stressor took place, make up the "other evidence" upon which the August 2010 examiner's conclusion and the RO's August 2010 grant of service connection were based.        

Based on the foregoing discussion, the requirements of § 3.156(c)(3) have not been met and the effective date for this matter must be determined through application of 38 C.F.R. § 3.400(q)(2), (r).  In this case, under 38 C.F.R. § 3.400, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later.  Here, the date of entitlement precedes the date of the reopened claim on November 2, 2009.  Thus, the later date of the reopened claim is controlling for the effective date assigned under the factual circumstances in this matter.  Further, the Court has acknowledged that the effective date based on an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. LaLonde v. West, 12 Vet. App. 377, 382 (1999) (citing Hazan v. Gober, 10 Vet. App. 511 (1997); Washington v. Gober, 10 Vet. App. 391 (1997), and Wright v. Gober, 10 Vet. App. 391 (1997). 

Based on the foregoing discussion as well as the facts in this case, the assignment of an effective date earlier than November 2, 2009 is legally precluded. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017).

ORDER

Entitlement to an effective date prior to November 2, 2009 for the award of service connection for PTSD with major depression is denied.




____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs