Citation Nr: 18159743 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 07-26 961 DATE: December 20, 2018 ORDER An effective date earlier than February 15, 2006, for the grant of service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD), is denied. FINDINGS OF FACT 1. In January 1996, the Board denied the Veteran’s claim of service connection for a psychiatric disorder, to include PTSD. 2. A July 2012 Board decision granted the psychiatric claim and an August 2012 rating decision awarded a 100 percent rating, effective February 15, 2006. 3. The casualty records of five soldiers killed in action in Vietnam, obtained from a private website, are not official service department records. CONCLUSION OF LAW The criteria for an effective date earlier than February 15, 2006, for the award of service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. § 5510; 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from November 1966 to November 1969. This case comes before the Board on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In connection with this appeal, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) in February 2010. An August 2016 letter informed the Veteran that the VLJ who conducted the February 2010 hearing was no longer at the Board. In a response from April 2017, the Veteran indicated that he did not wish to appear at another Board hearing. The claim most recently came before the Board in July 2017 and it denied entitlement to an effective date earlier than February 15, 2006 for the grant of service connection for an acquired psychiatric disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2018 Order, the Court granted a May 2018 Joint Motion for Partial Remand (JMR). The denial was vacated and the issue has returned to the Board for adjudication consistent with the JMR. The Board notes the July 2017 denial of special monthly compensation based on a need of aid and attendance was abandoned and the issue is no longer before the Board. The Board has limited its discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).   An effective date earlier than February 15, 2006, for the grant of service connection for an acquired psychiatric disorder, to include PTSD. Legal Criteria Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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 original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). A claim is 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). The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Although VA now requires claims to be filed on the proper standardized form, this applies to claims filed on or after March 24, 2015. See 38 C.F.R. § 3.155. The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that “[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” However, there is an exception to the general rule that the effective date of an award based on a request to reopen is the date VA receives the request to reopen. In the limited instance in which the new and material evidence received comprises a supplemental report from the service department, in accordance with 38 C.F.R. § 3.156(c), the former decision (representing the denial of that claim) may be reconsidered de novo on the merits. See 38 C.F.R. § 3.156(c) (2018); see also Shipley v. Shinseki, 24 Vet. App. 458 (2011). The wording of 38 C.F.R. § 3.156(c) was changed in 2006. The Court has determined that the nature and extent of the change was substantial and weighed strongly against giving retroactive effect to the amended regulation. See Cline v. Shinseki, 26 Vet. App. 18 (2012). The Board will accordingly apply the earlier (2002-2006), more favorable version of the regulation, which is cited below. 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. This comprehends official service department records that presumably have been misplaced and now have been located and forwarded to VA. 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 on the basis of the new evidence from the service department must be adequately supported 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 rating 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) (2002-2006). Section 3.156(c) serves to place a veteran in the position he would have been had the VA considered the official service department records before the disposition of his earlier claim. Facts The Veteran filed his original claim for benefits for service connection for a psychiatric disorder in May 1991. In a decision dated May 1992, the RO denied service connection for a nervous condition, to include PTSD. The Veteran appealed and in January 1996, the Board denied the Veteran’s claim for service connection for a psychiatric disorder, to include PTSD. The claim was denied on the bases that no competent evidence was submitted to support a diagnosis of PTSD and the evidence did not support that the Veteran’s schizophrenia was related to service. The January 1996 Board decision was final. On February 15, 2006, the Veteran submitted a claim to reopen his claim for service connection for a psychiatric disorder, to include PTSD. The evidence included statements from the Veteran and his sister, a VA examination, private treatment records, copies of casualty records of five soldiers killed in action in Vietnam printed from the Vietnam Casualty Search page on www.no-quarter.org , and a transcript of a Board hearing. The claim was denied in a June 2006 rating decision. The Veteran appealed to the Board and in April 2010, the Board granted reopening of the previously denied claim. In a July 2012 decision, the Board granted service connection for an acquired psychiatric disorder, diagnosed as PTSD and schizophrenia. The July 2012 Board decision was effectuated by an August 2012 rating decision and a 100 percent rating was awarded, effective February 15, 2006. In January 2013, the Veteran filed a notice of disagreement and argued that he is entitled to an earlier effective date for the grant of service connection for the psychiatric disorder, prior to February 15, 2006. Specifically, he asserted that the casualty list from no-quarter.org served, in part, as the basis for reopening the previously denied claim and led to the grant of service connection for a psychiatric disorder. He stated the casualty list should be construed as a service department record since no-quarter.org purportedly reflects information drawn from official Department of Defense documents. He contends an earlier effective date is warranted from May 28, 1991, the date of the original claim for service connection. The claim came before the Board in May 2016 and was denied as the Board determined the casualty reports submitted do not constitute an official service department record. The decision was appealed to the Court and the Court granted a September 2016 JMR which indicated the Board failed to adequately address the Veteran’s contention that no-quarter.org was a service department record, as it was “a website that merely searched a Department of Defense database.” The claim came before the Board in July 2017 and was again denied. The Board addressed the Veteran’s contentions, and noted “The Veteran argues that his claim was reopened in part based on the finding that the report from no-quarter.org…was drawn from official Department of Defense documents, the use of the evidence from the website should be considered a relevant service department record.” See July 2017 Board decision, page 6. The Board determined even if the casualty list is considered a service department record, it is not considered new and material evidence. The claim was appealed and the Court granted the May 2018 JMR which vacated the Board’s decision. Analysis As noted above, the prior version of 38 C.F.R. § 3.156(c) states: 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. This comprehends official service department records that presumably have been misplaced and now have been located and forwarded to VA. An internet print-out of a service department record may qualify under 3.156(c) if the original is an official service department record. Shipley v. Shinseki, 24 Vet. App. 458 (2011). After careful consideration, the Board finds that the casualty records from the private and now defunct formerly known as no-quarter.org do not constitute official service department records, such that application of 3.156(c) is warranted. The Board finds that a service department refers exclusively to a military branch of the Armed Forces. The casualty report from www.no-quarter.org submitted in 2007 is not a report produced by a service department, such as the Department of Defense. Further, the casualty records obtained from the website in 2007 were not a copy or scan of an original document issued by a service department. See generally 38 C.F.R. § 3.203(a)(1) (discussing the types of service records VA may accept from a claimant without verification from the appropriate service department). To the extent that the Veteran asserts the information from no-quarter.org was a website that merely searched a Department of Defense database, the Board acknowledges that according to the virtualwall.org website (http://www.virtualwall.org/docs/no-quarter.htm), no-quarter.org had in the past provided web-based access to the Department of Defense’s Vietnam War casualty database named the Southeast Asia Combat Area Combined Casualty File (CACCF). Nonetheless, the Board points out that the no-quarter.org website was not managed or operated by the Department of Defense. See https://dod.defense.gov/About/Military-Departments/DoD-Websites/ for a list of DOD websites. The information the Veteran provided in 2007 was issued and produced by a private website. Moreover, the Veteran has not proffered any evidence that the information provided in 2007 from no-quarter.org was certified to be a true and exact copy of an original service department record issued by a United States service department, including the Department of Defense. Even disregarding any questions concerning the authenticity of the 2007 document, it was not issued by the service department and is not otherwise the type of record contemplated by 38 C.F.R. § 3.156 (c). As noted, the pre-2006 version of 38 C.F.R. § 3.156 (c) contemplated official service department records which presumably had been misplaced, but had been located and forwarded to VA. Also included were 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. Finally, it is significant to note that the Board’s August 2010 decision which reopened the previously denied claim for service connection for PTSD, did not find that the casualty report was a service department record per 38 C.F.R. § 3.156 (c). Rather, the Board conducted a new and material evidence analysis under 38 C.F.R. § 3.156 (a). The Board finds such analysis was appropriate. Therefore, after careful review of the evidence, the Board finds an earlier effective than February 15, 2006 is not warranted. The Board acknowledges the Veteran’s combat service in Vietnam and is sympathetic to the psychiatric symptoms from which he suffered, including prior to February 2006. However, the casualty lists submitted in 2007 were not official service department records. Thus, the earliest effective date available is February 15, 2006; an earlier effective date is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel