Citation Nr: 18158878 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 15-41 963 DATE: December 19, 2018 ORDER An effective date of February 26, 2004, for the award of service connection for mood disorder, not otherwise specified, with posttraumatic stress disorder (PTSD) and polysubstance dependence, is granted. FINDINGS OF FACT 1. The Veteran initially sought service connection for PTSD in an application received by VA on February 26, 2004. 2. A December 22, 2004 rating decision denied service connection for PTSD as the Veteran did not have a diagnosis of PTSD and the Veteran’s stressor could not be corroborated. 3. New evidence was received and a rating decision was issued in September 2005. The September 2005 rating decision confirmed and continued the denial of service connection for PTSD as there was no credible link of any psychiatric disability to the Veteran’s military service. 4. In April 2008, the Veteran submitted a supplemental claim seeking service connection for PTSD. 5. Evidence received in connection with the 2008 claim included Army Criminal Investigative Division records. 6. The evidence of record at the time of the prior 2004 and 2005 rating decisions included sufficient information for VA to have located the Army Criminal Investigative Division records. CONCLUSION OF LAW The criteria for the assignment of an effective date of February 26, 2004, for the award of service connection for a mood disorder, not otherwise specified, with PTSD and polysubstance dependence, have been approximated. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.155 (a), 3.156(c), 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1979 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 decision by the Department of Veterans Affairs (VA) Regional Office (RO), denying an effective date before April 18, 2008 for service connection for a mood disorder, to include PTSD. This matter was remanded by the Board in a March 2016 decision to afford the Veteran the opportunity to attend a hearing before a Veterans Law Judge. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in August 2016 and a transcript of that hearing is associated with the record. As a hearing has now been conducted, the case is once again before the Board for appellate consideration of the issue on appeal. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an earlier effective date for entitlement to service connection for a mood disorder, not otherwise specified, with PTSD and polysubstance dependence Under 38 C.F.R. § 3.400 (b)(2)(i), if a claim for service connection is not received within one year after separation from service, the effective date for a grant of direct service connection will be the date of receipt of the claim, or the date that entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(ii). The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q) and (r). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1 (p). “Date of receipt” generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1 (r). The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final and is not subject to the revision on the same factual basis in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (a). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has made it clear that an appellant generally can attempt to overcome the finality of a prior final decision of the RO or Board in only one of two ways: by a request for revision of an RO or Board decision based on clear and unmistakable error (CUE), or by a claim to reopen based upon new and material evidence. See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C. § 7111 (a) (“A decision by the Board is subject to revision on the grounds of [CUE]. If evidence establishes the error, the prior decision shall be reversed or revised.”). Of the two options for challenging a final decision, only a request for revision premised on CUE could result in the assignment of an earlier effective date for an award of service connection, because the proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received. 38 U.S.C.§ 5110 (a); see Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (“[A]bsent a showing of CUE, [the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.”); Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006) (holding that once a decision is final, a freestanding claim for an effective date earlier than the date on which the claim was received impermissibly attempts to vitiate the rule of finality); see also Bingham v. Nicholson, 421 F.3d 1346, 1349 (Fed. Cir. 2005) (holding that failure to consider all possible theories that may support a claim does not serve to vitiate the finality of a decision). The Veteran claims that he is entitled an effective date prior to April 18, 2008 for his service-connected psychiatric disorder due to the receipt of records of a November 1979 in-service assault which were associated with the claims file in September 2009. The Veteran argues that, pursuant to 38 C.F.R. § 3.156 (c), due to the receipt of records that were not previously associated with the file when VA initially decided the claim, he is entitled to an earlier effective date. Section 3.156(c) may apply in cases in which VA receives certain records after it has already issued a decision on a claim. Under 38 C.F.R. § 3.156 (c)(1), “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.” As part of the regulation, the Secretary has included a nonexhaustive list of records that could constitute official service department records. Id. However, the applicability of this regulation is tempered by subsection (2), which provides that § 3.156(c) “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 did not “provide sufficient information for VA to identify and obtain the records. 38 C.F.R. § 3.156 (c)(2).” An award made based all or in part on the records identified by paragraph (c)(1)... is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later.” 38 C.F.R. § 3.156 (c)(3) (2016). In this regard, the Board notes that the Veteran initially filed a claim which was received in February 2004. Although the Veteran clearly checked the box indicating he was only filing for pension, he also completed Part B: Compensation and listed his low back, lung and PTSD. The subsequent May 2004 VCAA letter described the claim as one for “service-connected compensation claim for Nonservice Connected Pension, Individual Unemployability due to your inability to work, lower back, lung condition and PTSD.” This letter included the elements required to substantiate a claim for service connection and also included a PTSD questionnaire. The claim for pension was denied in June 2004. The Veteran did not appeal the June 2004 decision and it became final. In June 2004, the RO also received the Veteran’s PTSD Questionnaire, among other documents. A December 2004 rating decision indicated the claim stemmed from the February 2004 claim and denied the claim for PTSD on the basis of no diagnosis for PTSD in accordance with the DSM-IV. The rating decision also noted that there was no treatment or diagnosis for PTSD in service and no evidence to confirm the stressor noted on his PTSD Questionnaire. New evidence was received within one year of that rating decision so the claims were reconsidered in a September 2005 rating decision. The September 2005 rating decision notes that post-service treatment records reflect a diagnosis of PTSD and rage disorder but denied the claim as there was no credible link to service. The Veteran did not appeal and thus, the December 2004 and September 2005 rating decisions became final. The Army Criminal Investigative Division records of the November 1979 in-service assault were not associated with the claims file until September 2009. The Board notes that these records are of the type falling within the definition of 38 C.F.R. § 3.156 (c)(1). Furthermore, the Board finds that the Veteran provided sufficient information for VA to identify and obtain those records in connection with the previously-denied December 2004 and September 2005 claim. The Court has recognized that for claims involving personal assault, the timing of the additional notification letters may be different than for general claims. Indeed, the Court indicated it may not be evident until after the initial adjudication of a claim that the alleged stressors relate to a personal assault. Therefore, unlike the notification requirement of 38 U.S.C. § 5103, § 3.304(f)(3) is not applicable to a claim for service connection for PTSD until VA knows or has reason to know of the existence of evidence raising the possibility of an in-service assault. Gallegos v. Peake, 22 Vet. App. 329, 336, 2008 U.S. App. Vet. Claims LEXIS 1715, *19. In this case, the Veteran’s letter submitted with his PTSD Questionnaire and date stamped as received at VA in June 2004, clearly discussed the assault on the Veteran in service, provided the location, the exact Airborne division, a 1 year time frame and names and ranks of those involved. Given this description, VA was clearly on notice of the personal assault and had enough information to locate the Criminal Investigation records. As 38 C.F.R. § 3.156(c) applies, the date of claim can relate back to the original February 2004 claim. The question, therefore, is the date the entitlement arose. 38 C.F.R. § 3.156(c)(3). The term “date entitlement arose” is not defined in the current statute or regulation. The United States Court of Appeals for Veterans Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a “facts found” basis. See 38 U.S.C. § 5110 (a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (in the context of a service connection claim, the Board must determine when the service-connected disability manifested itself under all of the facts found). See Young v. McDonald, 766 F.3d 1348 (2014) (service connection for PTSD requires medical evidence diagnosing the condition). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. “[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition.” DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). However, “it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). A March 1995 psychiatric evaluation reflects that symptoms of the Veteran’s psychiatric disability have existed “at least” since the time of when he was on active duty, and added that some traits which lead him to become angry existed “since he was an adolescent.” The March 1995 evaluation also reported that he felt that he was mentally abused by his father. Importantly, the March 1995 report does not discuss any report of the Veteran having suffered any physical abuse or other stressors while on active duty. The report does not provide a nexus between his mood disorder and his military service, and only opines that his psychiatric disability is not related to a 1985 non-service connected motor vehicle accident. A September 1997 report indicates that the Veteran reported depression with feelings of loneliness, worthlessness, and difficulty sleeping. There is no medical evidence of a nexus between those feelings and the Veteran’s military service in the September 1997 report. A June 1999 private clinic note discusses the Veteran’s history of back injuries and notes that since the injury in 1985, the Veteran had significant associated problems related to the back injury and disability. The physician continued “it is my belief that the use of medications, including the prozac and the trazodone, were appropriately related to changes related to the industrial injury and the significant change in work status as well as dealing with the neuropathy and pain. A November 1999 letter from his orthopedist suggested that “from his chronic low back pain and inability to function to perform his usual [activities of daily living] on a regular basis this patient suffered from chronic stress syndrome and depression. The letter continued that “of course he was not depressed at the time of his original injury but over the course of years he became so from the chronic pain suffered from his many back surgeries. A September 2003 chart note from Omega Orthopedics reflects that the Veteran reported suffering PTSD and rage disorder which were characterized as preexisting conditions. The Veteran’s 2004 VA treatment records from the Portland VA Medical Center reflect he did not report any military assault to his treating physicians at that point in time, and there is no medical evidence providing a nexus between his psychiatric disability and his in-service assault. Rather, the treatment records reflect that his psychiatric disabilities are related to chronic pain and discomfort, along with general medical conditions. During the June 2004 mental health initial assessment the Veteran reported that his depressive and anxious symptoms have been escalating over the course of greater than ten years. He reported seeing a counselor once as a child and then stated that it was not until 1997 that he addressed health problems again. He was diagnosed with a mood disorder secondary to general medical condition, particularly pain. Records received subsequent to the 2004 and 2005 rating decisions but adding to the total picture are a June 2008 VA SATP assessment wherein the Veteran was found to have depression related to childhood and recent psycho-social problems including homelessness and unemployment but also noted to have a history of military related PTSD problems. During this visit the Veteran was noted to have reported military trauma exposure, however the report does not go into detail about this trauma. The report did indicate that the Veteran felt some or all of those events contributed to his subsequent drug use and drinking, painful or intrusive recollections, nightmares and thoughts, problems with relationships or isolation and anger/startle/hypervigilance or anxiety. The December 2009 VA examination did not diagnose PTSD but did diagnose mood disorder. The examiner discussed the March 1995 record that noted symptoms had been present for years, at least as long ago as when the Veteran was in the Army about 14 years ago. The examiner also reviewed the records attributing the mood disorder to his back. The examiner indicated that one difficulty in the Veteran’s case was the lack of information about the date of the assault and if behavioral problems that led to his discharge occurred before or after the assault. The examiner explained that if the assault occurred before the behavioral difficulties it would help to support the claim that the physical assault directly led to his behavioral difficulties that directly have an impact on his mental health. Without clear records, the examiner felt it was not possible to make substantive conclusions about the etiology of the condition. The examiner concluded that from the records provided it was likely the mood difficulties were significantly impacted by the back problems. A private DBQ submitted in June 2014 diagnosed both mood disorder and PTSD. The examiner noted the incident in service but did not provide an opinion as to the etiology. Rather the examiner only noted that he had limited engagement to fully assess the Veteran clinically and therefore could not discern which symptoms were attributable to which diagnosis. Significantly, the Board’s August 2014 decision which granted service connection for an acquired psychiatric disorder to include mood disorder and PTSD relied upon the Army Criminal Investigative Division records, the March 1995 record noting a long history of symptoms, the June 2014 private DBQ providing diagnoses and the December 2009 VA examination which explained that the timing of the behavioral difficulties could help support the claim. While a clear diagnosis of PTSD under the DSM was not present at the time of the prior rating decisions, there was a clear diagnosis of mood disorder and the Board finds it significant that when service connection was granted, it was for the broader acquired psychiatric disorder, to include both the mood disorder and PTSD. Reviewing the above, it is clear the case is medically complex and complicated by the lack of reporting the personal assault to treating physicians for years and the significant impact the intervening back injury had on the mood disorder. The Board recognizes and understands the lack of report given the severity and nature of the assault. Indeed, VA’s own regulations concerning personal assault provide for heighted notification and assistance as VA recognizes that personal assault is an extremely personal and sensitive issue and many incidents are not officially reported, and further noting that victims of such trauma may not necessarily report the full circumstances of the trauma for many years after the trauma. In light of this, and the evidence in March 1995 suggesting an onset of symptoms in service along with the 2009 VA examination which suggested that the timing of behavioral difficulties could help to establish the mood disorder as a result of service the Board finds that the date entitlement arose for the mood disorder was in service. As noted above, however, the effective date is the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156 (c)(3). Thus, in this case, the later of the two dates is the February 26, 2004. This is also the date the Veteran and his attorney have identified as the effective date they sought on appeal. In light of this, the Board trusts that both the Veteran and his counsel are satisfied with this decision. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011) (“[T]he Board... was entitled to assume that the arguments presented by [the appellant] were limited for whatever reason under the advice of counsel and that those were the theories upon which he intended to rely.”), aff’d, 724 F.3d 1325 (Fed. Cir. 2013); Robinson v. Peake, 21 Vet. App. 545, 554 (2008) (“The presence of [an] attorney throughout the appeals process before the Agency is a significant factor... [w]e presume that [the] attorney, an experienced attorney in veteran’s law, says what he means and means what he says”), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Accordingly, an earlier effective date, dating back to the February 26, 2004, date of claim, is warranted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Boal, Associate Counsel