Citation Nr: 1808489	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  90-01 485	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an effective date earlier than February 11, 1985 for the grant of service connection for posttraumatic stress disorder (PTSD) with a secondary schizoaffective disorder, redefined now analyzed as an acquired psychiatric disorder. 


REPRESENTATION

Appellant represented by: Kenneth M. Carpenter, Attorney 


ATTORNEY FOR THE BOARD

Victoria A. Narducci, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Army from October 1966 to September 1968. He received the Vietnam Service Medal. 

This matter before the Board of Veterans' Appeals (Board) is on appeal from a June 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri (Agency of Original Jurisdiction (AOJ)).

This matter was last before the Board in May 2015, whereby the Board decided that the Veteran was entitled to an earlier effective date of February 11, 1985 for his PTSD with a secondary schizoaffective disorder. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans' Claims (CAVC), which subsequently vacated and remanded the case back to the Board for readjudication. See January 2017 CAVC Decision. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C. § 7107(a)(2) (2012).

The Board notes that the Veteran is 100 percent service connected for PTSD with secondary schizoaffective disorder. The Veteran has previously labeled his claim as one for an earlier effective date for PTSD, or PTSD with secondary schizoaffective disorder. For clarification purposes, the Board will redefine the Veteran's claim as a claim for an earlier effective date for an acquired psychiatric condition, to include PTSD with secondary schizoaffective disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).


FINDINGS OF FACT

1. On October 26, 1977, the Veteran filed a claim for service connection for a nervous condition. The AOJ denied the claim by a rating decision dated March 1978, and the decision subsequently became final. 

2. After filing a second claim for service connection for a nervous condition and a claim for posttraumatic delayed stress in 1979 and 1982 respectively, the Veteran was ultimately granted service connection for PTSD in an August 2008 rating decision by the AOJ. 

3. By an October 2009 rating decision, the AOJ redefined the Veteran's service-connected disability to PTSD with secondary schizoaffective disorder, effective from October 6, 1988. 

4. By an October 2011 rating decision, the AOJ implemented an effective date of February 19, 1985 for the Veteran's PTSD with secondary schizoaffective disorder.

5. By a June 2015 rating decision, the AOJ implemented an effective date of February 11, 1985 for the Veteran's PTSD with secondary schizoaffective disorder.

6. The pre-amendment provisions of 38 C.F.R. §3.156(c) apply to the Veteran's claim, and the Veteran's October 1977 claim for service connection for an acquired psychiatric disorder remains open and pending as of October 26, 1977.

7. The evidence of record is at least in relative equipoise as to whether the Veteran's acquired psychiatric disorder, to include PTSD with a secondary schizoaffective disorder, had been present at the time of filing of the claim on October 26, 1977. 


CONCLUSION OF LAW

The criteria for an effective date of October 26, 1977, but no earlier, for the award of service connection for an acquired psychiatric disorder, to include PTSD with a secondary schizoaffective disorder, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.156 (prior to October 6, 2006), 3.400, 4.3 (2017). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Earlier Effective Dates - Generally 

The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. §5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. 

In cases involving direct service connection, the effective date will be 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, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. §3.400(b)(2)(i). 

The reference above to "the date entitlement arose" is not defined in the current statute or regulation. The CAVC 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). 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. However, the date entitlement arose is not the date that VA receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. 

"Claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary (i.e., VA Form 21-526). 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case. See 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014). 

As such, any communication or action in this case, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits 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. Upon receipt of an informal claim, if a formal claim has not been filed, an application form must be forwarded to the claimant for execution. If the application form is received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).

II. Analysis

The Board has considered whether 38 C.F.R. §3.157(b), in effect prior to April 2014, is applicable. This provision stated that once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of (1) a report of examination or hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from State and other institutions will be accepted as an informal claim for increased benefits or an informal claim to reopen. 

However, the Court has held that this regulation only applies to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in §3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that §3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). Specifically, VA medical records are not accepted as informal claims for disabilities where service connection has not been established, since the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999). Thus, any reference to symptoms of an acquired psychiatric condition in the VA clinic setting cannot constitute a formal or informal claim under 38 C.F.R. §3.157(b). Pacheco, 27 Vet. App. 21 (2014); Sears, 16 Vet. App. at 249. 

The Veteran argues that he should be entitled to an earlier effective date for the grant of service connection for PTSD (now an acquired psychiatric disorder to include PTSD with secondary schizoaffective disorder) due to the applicability of 38 C.F.R. § 3.156(c). Prior to September 2006, 38 C.F.R. § 3.156(c) (2005) stated that if a supplemental report from the service department comprises new and material evidence and is received by VA before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This includes those official service department records which presumably have been misplaced and have now 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. Id. However, 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 adequately supported by the medical evidence. Id.   

The regulations regarding the rules pertaining to the reconsideration of decisions on claims based on newly discovered service records received after the initial decision in a claim were amended in September 2006. See 52,455-52,457 (Sept. 6, 2006) (effective as of October 6, 2006). From October 6, 2006, 38 C.F.R. § 3.156(c) provides that, 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. Id. Such records include service records that are related to a claimed in-service event, 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 declassified records that could not have been obtained because they had been classified when VA decided the claim. See id.   However, such records do not include 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 failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the JSRRC, or any other official source. See 38 C.F.R. § 3.156(c)(2) (2017).

Here, subsequent to the Veteran's original claim in October 1977, the AOJ obtained and associated with the file treatment records documenting the Veteran's psychiatric condition. The Veteran's claim was granted, in part, on these newly-obtained records. As such, 38 C.F.R. § 3.156(c) applies. See Vigil v. Peake, 22 Vet. App. 63 (2008). Regarding which version of 38 C.F.R. § 3.156(c) is applicable to the Veteran's case, the Court issued the decision in Cline v. Shinseki, 26 Vet. App. 18 (2012), to address the retroactivity of the October 2006 amendment to 38 C.F.R. § 3.156(c). With respect to the limitation of 38 C.F.R. § 3.156(c)(2) on an effective date where a claim was reopened based on service department records if the claimant did not provide sufficient information to allow VA to identify and obtain the records at the time of the prior denial, the CAVC held that this limitation was not retroactive to claims pending prior to the October 2006 amendment and remanded for the Board to apply the pre-amendment version of 38 C.F.R. § 3.156(c) to the claim. Cline, 26 Vet. App. 18 (2012); Vigil v. Peake, 22 Vet. App. 63.

Thus, as the Veteran's appeal was pending prior to the October 2006 amendment, the pre-amendment version of 38 C.F.R. § 3.156(c) is applicable to the Veteran's February 19, 1985, claim to reopen. According to Cline, 38 C.F.R. § 3.156(c) would authorize an effective date for a claim reconsidered based on newly discovered service treatment records as early as the date of the original claim up to the date of the claim to reopen. Vigil v. Peake, 22 Vet. App. 63, 65. In this case, as the Veteran's claim is considered pending since the time of his original claim for service connection, an effective date as early as October 26, 1977 could potentially be authorized.

The Board, in redefining the Veteran's claim as one for an earlier effective date for an acquired psychiatric condition, to include PTSD with a secondary schizoaffective disorder, finds sufficient evidence to grant the claim. The Board further stresses (to clarify any inconsistencies) that previous Board decisions were adjudicated strictly as claims for entitlement to service connection for PTSD and not acquired psychiatric disorders. As the Board has expanded the claimed condition as directed by the CAVC, the record must reflect evidence of an acquired psychiatric disorder due to service prior to February 11, 1985 in order for the Board to grant the claim for an earlier effective date. 

The Veteran contends that he is entitled to an earlier effective date for his acquired psychiatric disorder, to include PTSD with a secondary schizoaffective disorder. Specifically, he argues that he is entitled to an effective date of October 26, 1977, the date on which he filed his first claim for a nervous condition. See VA 21-526 Veteran's Application for Compensation or Pension. He states that he has had trouble since he was in service in Vietnam, saying "[he] was afraid of death in Vietnam. [He] was just nervous about noise and people." See April 1999 Medical Treatment Record - Non-Government Facility. The Veteran also claimed his "traumatic problems [occurred] in Vietnam in 1967," and alleged he was missing in action due to government error. See October 1993 VA 21-4138 Statement in Support of Claim. However, this has never been verified, and he later retracted this statement. See October 1997 VA 21-4138 Statement in Support of Claim. 

As noted above, the Veteran filed his first claim for entitlement to service connection for a nervous condition in October 1977. See October 1977 VA 21-526 Veteran's Application for Compensation or Pension. The evidence of record at the time of adjudication reflected that the Veteran had stated he was receiving "treatment of [his] nerves due to Vietnam." See November 1977 Statement in Support of Claim. Medical records also indicated that as far back as January 1970, the Veteran complained of anxiety, loss of appetite, loss of concentration, and was generally having a difficult time at home. See February 1978 Medical Treatment Record - Government Facility. At the time, he was diagnosed as having neurotic anxiety. Id. Shortly thereafter in February 1970, doctors noted he had strong obsessive traits and hypochondriacal preoccupation, and subsequently ruled out pseudoneurotic schizophrenia." Id. By June of 1970, the Veteran claimed he felt better with medication. Id. The AOJ subsequently denied service connection for a nervous condition because he had not received treatment for his condition within one year post-service. See March 1978 Rating Decision. 

Since that time, the Veteran reported that the stress of Vietnam gave him an ulcer, but that he did not complain much due to the racial tensions at the time. See April 1978 Statement in Support of Claim. A May 27, 1982 progress note reveals that the Veteran was found to be "anxious" and "admit[ted] due [to] preoccupation [with] experiences in [Vietnam] via thoughts, dreams, flashbacks." See July 1982 Medical Treatment Record - Government Facility. The Veteran was ultimately hospitalized and diagnosed in February 1985 with chronic PTSD, resulting in the basis for his current effective date. 

The Board first observes that PTSD was not recognized as a disorder with specific symptoms that could be reliably diagnosed and added to the Diagnostic and Statistical Manual of Mental Disorders (DSM) until 1980.  See REPORT: PTSD, National Institute for Health, (August 23, 2017). Thus, the Board must be cognizant that symptoms that may have supported a diagnosis of PTSD prior to 1980 would not have been diagnosed as PTSD. The Board further observes that PTSD is among the class of mental disorders classified as an anxiety disorder. See 38 C.F.R. § 4.130.

The Board notes that a retrospective examination and opinion was obtained in October 2014, wherein a VA examiner thoroughly reviewed the claims file and considered the Veteran's statements. After examination of the Veteran, she stated that she was unable to opine about the date of onset of the Veteran's PTSD diagnosis without resorting to speculation. She explained that she had been unable to find any documentation about the onset of specific symptoms of PTSD prior to February 22, 1985. Furthermore, the Veteran himself had been unable to recall when his symptoms began, noting only that his symptoms had started sometime after returning from Vietnam and that they had gotten progressively worse over the years. He stated that he was unsure when exactly his symptoms started. The examiner explained that the presence of symptoms was not sufficient to warrant a diagnosis of a mental disorder such as PTSD. Instead, the number of symptoms must also be considered, and for PTSD, the number of symptoms within each cluster of symptoms had to be considered. Thus, the examiner indicated that one could report symptoms and still remain below the threshold for a diagnosis. She further stated that in addition to number of symptoms, functional impairment was necessary to consider when establishing the presence or absence of a diagnosis. She found that the Veteran clearly met the criteria for PTSD at the present time. However, she determined that it was impossible to tell from the provided evidence, including the Veteran's reports, record, and chart, at what point his symptoms began to meet the diagnostic criteria for PTSD, especially over a 30 to 40 year time span. The examiner concluded that the Veteran currently met the DSM-V criteria for PTSD, but without the Veteran's own recall of time of onset of symptoms or documentation of symptoms from the required time frame, she was unable to offer an opinion about the date of onset of PTSD without resorting to speculation.

The Board notes this examiner specifically remarked that she was unable to determine when the Veteran's symptoms of PTSD began; it was not noted at what point she felt symptoms of an acquired psychiatric condition began. See October 2014 C&P Examination. The CAVC remanded this case on the basis that consideration must be given to whether the Veteran's current acquired psychiatric disorder, which includes schizoaffective disorder, had manifested at the time of filing of claim in October 1977. There are multiple different diagnostic impressions offered over the course of the appeal, and there is no medical opinion differentiating any particular diagnosis from the service-connected mental disorder. As such, the Board must give consideration to attributing all psychiatric symptoms to the service-connected acquired psychiatric disorder. See generally Mittleider v. West, 11 Vet. App. 181 (1998).

The Veteran was granted service connection for PTSD, in part, based on the opinion of an April 2008 VA examiner opinion. This examiner, based upon interview of the Veteran and review of the claims folder, took a history that "throughout his postmilitary life" the Veteran had experienced recurrent intrusive recollections and nightmares about his corroborated Vietnam stressors; avoidance of his stressors; markedly diminished interests and activities; detached and estranged from others; sleep difficulty; irritability; and hypervigilance which meet the criteria for a PTSD diagnosis. This is consistent with the Veteran's initial reports as early as 1977 wherein the Veteran was describing nerve problems due to Vietnam with symptoms that included anxiety, loss of appetite, loss of concentration that was initially diagnosed as neurotic anxiety.

The benefit of the doubt standard reflects the nation's recognition of debt to our veterans by assuming the risk of error in awarding benefits to the veteran). Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Here, the evidence of record depicts that, at the time of filing of claim in 1977, the Veteran attributed his psychiatric symptoms to his time in Vietnam, and that this condition has been present since the time he first filed a claim for entitlement to service connection for a nervous condition in October 1977. The 2008 VA examiner stated that the Veteran had manifested PTSD symptomatology "throughout his postmilitary life" which is consistent with the documentary record in the 1970s. In 1970, the Veteran complained of anxiety, loss of appetite, and loss of concentration; in a recent C&P examination, he was reported as experiencing anxiety, memory loss, and loss of concentration. See February 1978 Medical Treatment Record - Government Facility; see also October 2014 C&P Examination.

Overall, the Board finds that the evidence of record is at least in relative equipoise as to whether the Veteran's acquired psychiatric disorder, to include PTSD with a secondary schizoaffective disorder, had been present at the time of filing of the claim on October 26, 1977. As noted above, the controlling law sets the date of a grant of service connection as not being earlier than the date of claim under the statute and as the date of claim or the date entitlement arose, whichever is later, under the regulation. 38 U.S.C. §5110(a); 38 C.F.R. §3.400. 

As such, and by viewing the evidence in the light most favorable to the Veteran, the Board finds that the Veteran is entitled to an earlier effective date of October 26, 1977 for an award of service connection for an acquired psychiatric disorder, to include PTSD with a secondary schizoaffective disorder. There is no prior formal or informal claim for an acquired psychiatric disorder prior to October 26, 1977, and the original claim was filed more than 1 year after service separation. Thus, there is no basis for an earlier effective date than October 26, 1977.


ORDER

Entitlement to an effective date of October 26, 1977, but no earlier, for an award of service connection for an acquired psychiatric disorder, to include PTSD with a secondary schizoaffective disorder, is granted. 





____________________________________________
T. MAINELLI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs