Citation Nr: 18149266 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 12-13 398 DATE: November 9, 2018 ORDER An effective date of June 15, 2005, for the award of service connection posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an initial disability rating in excess of 70 percent for PTSD is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. On June 15, 2005, VA received the Veteran’s original claim of entitlement to service connection for PTSD that was then denied in an April 2006 rating decision. 2. Official service records received after the April 2006 rating decision, in part, formed the basis of the grant of service connection for PTSD. CONCLUSION OF LAW The criteria for an effective date of June 15, 2005, but no earlier, for the award of service connection for PTSD are met. 38 U.S.C. §§ 1110, 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1976 to February 1993. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, the Board, in part, denied the Veteran’s claim for entitlement to a TDIU. In June 2018, a Joint Motion for Partial Remand entered by the Court of Appeals for Veterans’ Claims vacated and remanded the June 2017 Board decision to the extent that denied entitlement to a TDIU. 1. Earlier Effective Date Laws and Regulations The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b); 38 C.F.R. § 3.400 (b). In cases involving new and material evidence, where evidence other than service department records is received within the relevant appeal period or prior to the issuance of the appellate decision, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400 (q)(1). In cases where the evidence is received after the final disallowance, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (q)(2). There is no basis for a freestanding earlier effective date claim from matters addressed in a final rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Generally, the effective date of service connection based on a reopened claim is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r). Significantly, in this case, the Board must determine whether 38 C.F.R. § 3.156 (c) is applicable for assigning earlier effective dates based upon VA’s subsequent receipt of service department records. The Veteran contends that she is entitled to effective date earlier than February 10, 2010 for the award of service connection for PTSD. Pursuant to 38 C.F.R. § 3.156 (c), a final decision will be reconsidered when new and material evidence, in the form of “relevant official service department records” that existed and had not been associated with the claims file when VA first decided the claim, results in the reopening of a claim and a retroactive evaluation may be assigned. Specifically, where a claim has been denied due to lack of evidence of an in-service injury, but later is granted based all or in part on subsequently acquired service records establishing the in-service injury and a nexus between the in-service injury and a current disability, the Veteran is entitled to a retroactive evaluation of the disability to assess the proper effective date i.e., the date of the original claim or the date entitlement otherwise arose, whichever is later. 38 C.F.R. § 3.156 (c) (2008); Vigil v. West, 22 Vet. App. 63, 66-67 (2008). In this sense, the claim is not just re-opened; it is reconsidered and the date VA received the previously decided claim serves as the date of the claim, and the earliest date for which benefits may be granted. Id. An exception pertains to records that VA could not have obtained when it first decided the claim because the records did not exist, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156 (c)(2). Factual Background and Analysis On June 15, 2005, the Veteran filed a claim for service connection for PTSD. An April 2006 rating decision denied entitlement to service connection for PTSD on the basis that his service treatment records did not show supporting evidence that an in-service stressor occurred. The Veteran did not appeal and the decision was final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). The Veteran filed a claim to reopen her claim for service connection for PTSD that was received by VA on February 10, 2010. VA subsequently received the Veteran’s additional service personnel records which demonstrated in-service behavioral incidents. Based in part on receipt of these records, in an April 2015 rating decision in conjunction with a November 2014 Board decision, the RO granted service connection for PTSD and assigned an initial 70 percent disability evaluation, effective February 10, 2010, the date of her claim to reopen. In this case, the Veteran’s original claim was denied, in part, on a lack of a verified stressor concerning the reported incidents. Subsequently, the November 2014 Board decision granted service connection based on the service personnel records associated with the claims file. In its November 2014 grant of service connection, the Board noted that the Veteran’s service personnel records reflected that she received an Article 15 in February 1993 for being disrespectful in deportment toward a noncommissioned officer which occurred around the time of her alleged incident and resulted in her being discharged involuntary. The Board also noted that a November 2010 VA examiner found that that the Veteran had PTSD which was related to her alleged in-service incident. When affording the Veteran the benefit of the doubt, the Board concludes that the evidence of record is supports a finding that an earlier effective date of June 15, 2005 is warranted for the grant of service connection for PTSD. The Board in its November 2014 decision granted service connection, based, in part, on newly received service department records. Because the Veteran submitted the previously-decided claim for service connection on June 15, 2005, that date becomes the effective date for service connection for her PTSD. In sum, the Veteran’s initial PTSD claim was denied for a lack of a verifiable in-service stressor that was subsequently corroborated by service department records associated with the claims file. Given the foregoing, the Board finds that the earliest possible effective date for the award of service connection for PTSD and an anxiety disorder is June 5, 2005, the date of VA’s receipt of the original claim. 38 C.F.R. § 3.156 (c) (2017). REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. As the Board has awarded an earlier effective date for service connection for PTSD, the AOJ must assign the initial ratings for this disability in the first instance. As a result, the issue of higher initial ratings for PTSD is inextricably intertwined with the initial ratings that will be assigned for this disability. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. As such, Board adjudication of the higher initial rating claim for PTSD at this time would be premature. Additionally, the AOJ’s assignments of initial ratings for PTSD could impact whether the Veteran is eligible for entitlement to a TDIU. Therefore, the Board will also defer adjudication of that issue until the AOJ assigns the initial ratings. The matters are REMANDED for the following action: After assigning initial ratings for PTSD, readjudicate the issue of entitlement to increased initial ratings for PTSD and entitlement to a TDIU. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel