Citation Nr: 18159363 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 10-36 485A DATE: December 19, 2018 ORDER Entitlement to an effective date earlier than June 6, 2006, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran was not diagnosed with PTSD until June 6, 2006. 2. October 2002 and February 2007 rating decisions denied the Veteran’s claims of service connection for PTSD; the claimant did not appeal either decision; he did not thereafter submit new and material evidence as to this issue within the one-year appeal period of either decision; and VA did not subsequently obtain and associate with the claims file VA treatment records generated within the one-year appeal period related to this issue. 3. The preponderance of the evidence shows that 38 C.F.R. § 3.156(c) (2002) does not apply to the current appeal despite new and material service department records that verified the Veteran’s PTSD stressor being obtained in June 2009 because the Veteran did not cooperate in the prosecution of his claim by providing VA with detailed stressor information despite being asked to do so by the RO before it issued the October 2002 and February 2007 rating decisions. CONCLUSION OF LAW The criteria for an effective date prior to June 6, 2006, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. § 3.156(c) (2002); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.156, 3.157, 3.321, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from October 1966 to October 1969. In a February 2014 decision, before a different Veterans’ Law Judge, the Board of Veterans’ Appeal (Board) denied the Veteran’s claim for an effective date earlier than June 6, 2006, for the grant of service connection for PTSD and remanded a claim of service connection for headaches. The Veteran appeal the February 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent October 2015 memorandum decision, the Court affirmed the February 2014 Board decision. The Veteran appeal the October 2015 Court decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). In a March 2017 decision, the Federal Circuit set aside the October 2015 Court decision. In a subsequent October 2017 memorandum decision, the Court again affirmed the February 2014 Board decision. In November 2017, the Veteran filed a motion for reconsideration of the Court’s October 2017 decision and the Court thereafter determined that reconsideration was warranted. In a subsequent March 2018 memorandum decision, the Court withdrew its October 2017 decision and issued the March 2018 decision in its stead which decision set aside the February 2014 Board decision and remanded the appeal to the Board to take action in accordance with the Court’s decision. The Board also notes that a January 2018 decision granted the Veteran service connection for headaches. Therefore, the Board finds that this issue is no longer in appellate status. Lastly, the Board notes that additional evidence was added to the claims file since the issuance of the September 2011 statement of the case. Nonetheless, the Board finds that it may adjudicate the appeal without obtaining a waiver from the Veteran or remanding for agency of original jurisdiction (AOJ) review because the evidence is not pertinent as to the claim for an effective date earlier than June 6, 2006, for the grant of service connection for PTSD. See 38 C.F.R. § 19.31 (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). The Board believes that further delays in the adjudication of this case must be avoided. The Earlier Effective Date Claim The Veteran’s Assertions In Briefs’ to the Court and the Federal Circuit, as well in writings to VA, the Veteran’s learned attorney asserts, in substance, that the claimant is entitled to the award of service connection for PTSD dating back to his original July 22, 2002, claim. Specifically, he claims that under 38 C.F.R. § 3.156(c), as it was written in 2002, the Veteran is entitled to reconsideration of the October 2002 rating decision that first denied him service connection for PTSD because supplemental new and material service department records (that for the first time verified his PTSD stressors) were received by the Veterans' Administration (VA) in June 2009. It is also claimed that a reconsideration of the October 2002 rating decision, taking into account these records, would lead to the earlier award of service connection for PTSD. In support the above assertion, the Veteran’s representative appears to concede that the appellant did not provide VA with his detailed stressor information when first asked for it by VA in September 2002 and October 2006 (i.e., before the October 2002 and February 2007 rating decisions), but asserts that 38 C.F.R. § 3.156(c), as it was written in 2002, placed no obligation on the appellant to provide this information. Therefore, the Veteran is entitled to have VA reconsider his October 2002 rating decision once these new and material service department records were received by VA in June 2009. VA’s Laws and Regulations Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary 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). The term “claim” or “application” means 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). While the laws and regulations governing what is a “claim” or “application” for VA benefits have since been changed, during the time period covered by this appeal, the term “claim” or “application” meant 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 intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. In this regard, it is well settled that intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing). 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. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. If a Veteran file’s a claim with VA and the claim is disallowed he has the right to appeal that disallowance to the Board. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If the Veteran does not perfect an appeal, however, the disallowance becomes final. See 38 U.S.C. § 7105. Similarly, denials of claims by the Board are final on the date the decision is issued by the Board. 38 U.S.C. § 7104. The finality of that rating decision can only be upset upon a finding of clear and unmistakable error (CUE). See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.105. Moreover, in 2002 38 C.F.R. § 3.156(c) provided, in part, as follows: Where the 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. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly 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. (emphasis added). The effective date of an award based on a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also recently held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. The Board notes that perhaps the United States Supreme Court’s future decision in Kisor v. Wilkie (i.e., an appeal involving 38 C.F.R. § 3.156(c) and for which it recently granted cert) will provide VA some additional guidance as to how to handle appeals with similar fact patterns in the future. However, as noted below, the Board believes that the facts of this case are not typical of a case that involves 38 C.F.R. § 3.156(c), as will be addressed below. The Appeal History The record shows that the Veteran’s original claim for service connection for PTSD was signed and dated on June 6, 2002; the claim was received by VA on July 22, 2002. A September 2002 letter to the Veteran from VA enclosed a PTSD Questionnaire and notified him that the RO required a “complete detailed description of the specific traumatic incident(s) which produced the...claimed PTSD” and the date of the incident within a 30-day time period or at least the season and year that the incident occurred which produced the claimed PTSD. It is important for the Veteran to understand that this request for information was made by the VA to assist in obtaining pertinent records that would provide a valid foundation to grant the claim. In June of 2002 the VA had no records that would provide a clear basis to grant this case, nor did it have any indications of lost or missing records. At this critical point in the case it was asking the Veteran to provide key information (twice) that would provide the basis to quickly and accurately address the Veteran’s request for compensation based on his honorable military service. Without this assistance, the RO is left on its own to blindly seek information from an immeasurable array of possible sources that may, or may not, assist with the development of a particular case, based on what can only be described as highly limited information from events that occurred, in some case, more than one-half century ago, delaying not only the full adjudication of this case, but of other Veterans’ cases as well. The Veteran did not reply with a detailed stressor statement. If fact, no additional information was provided by the Veteran to assist the VA is granting his claim. Nonetheless, his service treatment and personnel records were received by VA in October 2002. The records document service in Vietnam from December 1967 to December 1968 with Company B of the 501st Signal Battalion. An October 2002 rating decision thereafter denied the Veteran’s initial claim of service connection for PTSD. The claim was denied because there was no indication that the Veteran received any medal or decoration that automatically denoted combat; there was no indication from his service personnel records that he was involved in any combat situations; service treatment records were negative for any complaint, treatment, or diagnosis of psychiatric problems, and there was no indication of treatment for any traumatic injury; post-service medical evidence from January 1999 to July 2002 was negative for treatment or diagnosis of PTSD; and the Veteran did not respond to the request for evidence regarding any in-service traumatic incidents. The Veteran was notified of the decision by a separate letter the same month. In October 2006, the Veteran submitted his application to reopen his claim of service connection for PTSD. In an October 2006 letter, the RO again provided a PTSD Questionnaire to the Veteran and asked him to complete and return the form, clearly describing the stressful event(s) and date(s) of event(s) that caused his claimed PTSD. While in October 2006 and November 2006, the Veteran replied to the RO, these statements did not include detailed stressor statement. Nonetheless in January 2007 the RO printed Lineage and Honors Information regarding the 501st Signal Battalion and History of the 509th Signal Battalion. The latter report indicated that Company B of the 501st Signal Battalion supported the 1st Brigade of the 101st Airborne Division in Vietnam. The RO also obtained a VA psychiatry consultation dated June 6, 2006, in which the Veteran described a several-year history of anxiety and depression and related the onset of “significant” anxiety and depression to the time of working a very stressful job for many years.” He described “classic symptoms of depression and generalized anxiety” and symptoms of PTSD. The psychiatrist’s report notes that the Veteran “has the stressor - Vietnam combat.” The report does not include of any specific details regarding the Veteran’s service in Vietnam or his military service generally. Subsequent records reflect follow-up for psychotropic medications with the psychiatrist and participation in PTSD group therapy sessions with a psychologist. A February 2007 rating decision thereafter reopened the claim of service connection for PTSD because medical evidence established a diagnosis. However, the claim was denied on the merits because there was no credible supporting evidence of an in-service stressor. The RO explained why the Veteran’s service medals and decorations did not denote participation in combat and emphasized that the Veteran had not responded to the October 2006 letter requesting specific details of claimed combat-related incidents that resulted in PTSD. He was notified of the decision in a separate letter dated in February 2007. In July 2008, the Veteran submitted the present application to reopen his claim of service connection for PTSD. The RO in August 2008 again advising him of the information and evidence needed to reopen and establish his claim and enclosing a PTSD Questionnaire. The Veteran, for the first time, returned the Questionnaire in September 2008. One of the stressful incidents he identified was “severe mortar and rocket attacks [at] Bien Hoa” while stationed with Company B of the 501st Signal Brigade sometime between December 1967 and July 1968. In light of the Veteran’s assistance, in June 2009, the RO obtained service department records, which confirmed that the Veteran’s unit was attacked on January 31, 1968, while located at Bien Hoa, Vietnam. He was afforded a VA PTSD examination in July 2009, and the examining psychologist concluded that the Veteran’s PTSD was attributable to the confirmed rocket and mortar attack. In a September 2009 rating decision, the RO granted service connection for PTSD effective from the date the application to reopen the claim was received, July 2, 2008. Thereafter, in a September 2011 rating decision the RO assigned the Veteran an earlier effective date of June 6, 2006, for the award of service connection for PTSD. Importantly, the RO explained that subsequent to receipt of a claim to reopen for service connection for PTSD on February [sic] 2, 2008, additional service department records were obtained. According to the RO, those records, in conjunction with his military personnel records on file at the time of receipt of his original claim, verify that his unit was attacked in January 1968 at Bien Hoa. As a result of the newly received records that verify a military stressor, the RO reconsidered the claim received on July 22, 2002. The RO further explained that service connection for PTSD was warranted effective June 6, 2006, which was “the date [PTSD], which has been linked to a verified military stressor, was first diagnosed.” The Board’s Analysis a. No Diagnosis of PTSD Appears in the Record Until June 6, 2006 Notwithstanding any of the Veteran and his representative’s arguments to the contrary, the Board finds that claimant is not be entitled to an effective date earlier than June 6, 2006, for the award of service connection for PTSD because the record does not show he was diagnosed with PTSD earlier than this date. In this regard, the Board notes that “[t]he retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence.” 38 C.F.R. § 3.156(c) (2002). Moreover, the requirements for entitlement to service connection for PTSD are “medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.” 38 C.F.R. § 3.304(f). Tellingly, the Federal Circuit has declined to “read § 3.304(f) as providing that entitlement can arise on a date for which there is no medical diagnosis of the veteran’s condition as PTSD.” Young v. McDonald, 766 F.3d 1348, 1352 (Fed. Cir. 2014). Here, the record does not show the Veteran being diagnosed with PTSD until June 6, 2006; which is his effective date. See VA psychiatry consultation dated June 6, 2006. Moreover, neither the Veteran or his representative have ever claimed that the record shows the appellant being diagnosed with PTSD earlier than June 6, 2006. While there may have been suggestions of possible PTSD based on the Veteran’s prior statements, the Veteran’s representative is asking the Board to grant an earlier effective date to a time that the disability at issue may not have existed. In this regard, it is important for the Veteran to understand that PTSD is an insidious disorder: A Veteran may develop PTSD years and/or decades after service (many times in retirement). In many cases the condition does not exist until years after service. In this case, the Board can not assume that PTSD existed because the Veteran filed a claim for it on July 22, 2002. Therefore, regardless of any other arguments being made by the Veteran and his representative, the Board finds that the claim for an effective date earlier than June 6, 2006, for the award of service connection for PTSD is denied because the appellant, factually, is not entitled to the benefits until the date on which he obtained a diagnosis of PTSD - June 6, 2006. See 38 C.F.R. § 3.156(c); Young, supra. b. Finality of the October 2002 and February 2007 rating decisions Notwithstanding the above, the Board finds a second basis, beyond the primary basis cited above, that the Veteran’s claim must be denied: the October 2002 and February 2007 rating actions are final. Initially, the Board notes that the Veteran did not appeal either the October 2002 or the February 2007 rating decision. Likewise, the Board finds that the decisions did not remain open because no medical records were received in either of the first post-decision years; relevant written statements regarding service connection for PTSD were not received from the Veteran or his representative in either of the first post-decision years despite the record showing a number of communications between the Veteran and the RO during these time periods; and the RO did not thereafter associate with the record VA treatment records, after the time to appeal the decisions had run, that were created during the one-year appeal periods and which the RO have knowledge of as well as which were new and material evidence. See 38 C.F.R. § 3.156(b); Turner v. Shulkin, 29 Vet. App. 207 (2018). The Board also finds that it cannot adjudicate whether there was CUE in the October 2002 or the February 2007 rating decision because the Veteran has never made such a claim and the issue has not previously been adjudicated by the RO. See 38 C.F.R. §§ 20.200, 20.202, 20.302. Accordingly, the Board finds that the October 2002 and February 2007 rating decision are final unless, as argued by the Veteran and his representative, the claimant is entitled to reconsideration of the October 2002 rating decision under 38 C.F.R. § 3.156(c). 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. c. 38 C.F.R. § 3.156(c) and reconsideration of the October 2002 rating decision As noted above, the Veteran and his representative’s claim that 38 C.F.R. § 3.156(c), as it was written in 2002, did not place a specifically obligation on the appellant to cooperate in the prosecution of his claim by providing VA with needed information to locate possible relevant and outstanding new and material service department records, notwithstanding repeated requests by the RO for the Veteran to do so. The Board agrees that the 38 C.F.R. § 3.156(c) (2002), standing alone, did not include such language. However, regulations are not read in a vacuum. In this regard, the Federal Circuit in Vazquez-Claudio v. Shinseki, 713 F.3d 112,115 (Fed. Cir. 2013) (citing Lengerich v. Dep’t of Interior, 454 F.3d 1367, 1370 (Fed.Cir.2006)), held that “[i]n construing regulatory language, we must read the disputed language in the context of the entire regulation as well as other related regulatory sections in order to determine the language’s plain meaning.” The Federal Circuit in Sears v. Principi, 349 F.3d 1326, 1331 (Fed. Cir 2003) also held that “VA’s regulation differentiates between those cases in which a veteran’s claim was originally denied due to error or inattention on the part of the government and all other cases where the original claim was initially denied and benefits were subsequently granted based on new and material evidence.” Additionally, it is well established that “responsibilities for corroborating benefits claims are allocated between the VA and the claimant.” See Skoczen v. Shinseki, 564 F.3d 1319, 1328 (Fed. Cir. 2009); see also38 U.S.C. §§ 5103A, 5107(a). In this regard, the Court, as far back as 1992 (well before the change in the regulation cited above), indicated that “the duty to assist is not always a one-way street. If a veteran wishes . . . help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” See Wood v. Derwinski, 1 Vet. App. 190, 193 (1992); see also Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc) (“The Secretary’s duty to assist does not encompass a duty to prove a claim with the claimant only in a passive role.”). The situation in Wood is similar to the case before the Board now nearly 25 years later: A Veteran, with key information about evidence that would provide the RO a basis to grant his PTSD claim, does not provide that information, notwithstanding repeated requests by VA for him to do so. In Wood, the Veteran “failed twice to be sufficiently specific about the stressful events he had alleged.” Wood at 193. Likewise, 38 C.F.R. § 3.159(c)(2)(i) (2002) required (and still requires) claimants to cooperate with VA’s efforts to obtain necessary records, particularly with respect to identifying stressful events in service. Specifically, the regulation provided as follows: The claimant must cooperate fully with VA’s reasonable efforts to obtain relevant records from Federal agency or department custodians. If requested by VA, the claimant must provide enough information to identify and locate the existing records, including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. In the case of records requested to corroborate a claimed stressful event in service, the claimant must provide information sufficient for the records custodian to conduct a search of the corroborative records. (emphasis added). Furthermore, 38 C.F.R. § 3.156(c) (2002) provided, in part, that it was intended to apply only to the following types of records “. . . This comprehends official service department records which presumably have been misplaced and . . . corrections by the service department . . .”. In this case, the record shows that after the Veteran filed his original July 2002 claim of service connection for PTSD, the RO in September 2002 sent him a PTSD Questionnaire. Likewise, after the Veteran filed his claim to reopen in October 2006, the RO later in October 2006 again provided him with a PTSD Questionnaire and asked him to complete and return the form. In both instances, the Veteran was asked to clearly describe the stressful event(s) and date(s) of event(s) that caused his claimed PTSD. While a review of the record on appeal reveals that other writings were thereafter received from the Veteran, the record does not show that the appellant thereafter provided the RO with the requested detailed stressor information. Tellingly, the record shows that only after the RO received the Veteran’s July 2008 claim to reopen did he reply to an August 2008 PTSD Questionnaire and, based on his reply, the RO was able to confirm his stressor (mortar and rocket attacks [at] Bien Hoa” while stationed with Company B of the 501st Signal Brigade sometime between December 1967 and July 1968) and grant service connection for PTSD in the September 2009 rating decision. In summary, the record shows that the Veteran had earlier failed to cooperate in the prosecution of his claim when the RO asked for his PTSD stressor information in September 2002 and October 2006 before issuing there subsequent October 2002 and February 2007 rating decisions. The Board finds that this failure to cooperate was in direct contradiction of the Veteran’s obligation under 38 C.F.R. § 3.159(c)(2)(i) (2002). The Board also finds that it was contrary to the Court’s holdings in Skoczen, supra, and Wood, supra. The Board also finds it significant that 38 C.F.R. § 3.156(c) (2002) on its face was intended to only apply to “misplaced” and “corrected” service department records; not service department records that the RO did not know existed because the Veteran did not tell VA the details of his PTSD stressors. As noted above, the Veteran’s service medals and decorations did not denote participation in combat. The Board must note for record that the key piece of information obtained by the RO in light of the Veteran’s cooperation was not something that can be easily found without detailed data from a person directly involved in the event. Unit records can be thousands of pages in length. Further, we are addressing an event that occurred on January 31, 1968, more than one-half century ago, at Bien Hoa, Vietnam. This is not a situation in which service records were misplaced, the RO did not know where to look. The RO, without the information the Veteran finally provided, could have spent years looking into unit histories without finding the one event that provided the basis to grant this claim. Cooperation from the Veteran was not only required under the law, it was desperately needed. Therefore, the Board finds that the preponderance of the evidence shows that 38 C.F.R. § 3.156(c), as it was written in 2002, does not apply to the current appeal and VA had no duty to reconsider the October 2002 rating decision; to allow the application of 38 C.F.R. § 3.156(c) in the current appeal would both negate the intent of 38 C.F.R. § 3.159(c)(2)(i) (2002) as well as be contrary to the Court’s holdings in Skoczen, supra, and Wood, supra. Conclusion Consequently, the Board finds that the October 2002 and February 2007 rating decisions are final and the effective date for the award of service connection for PTSD may be no earlier than a new application; at some point in time after the final February 2007 rating decision. Therefore, because the RO has already granted the Veteran service connection for PTSD effective June 6, 2006 (i.e., before the final February 2007 rating decision), the Board finds that the claim for yet an earlier effective date is denied. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel