Citation Nr: 1815504	
Decision Date: 03/14/18    Archive Date: 03/23/18

DOCKET NO.  14-02 226	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to an effective date prior to April 24, 2012, for the grant of service connection for posttraumatic stress disorder (PTSD).  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Steve Ginski, Associate Counsel

INTRODUCTION

The Veteran served on active duty from May 1984 to June 1992.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.

The Veteran testified before the undersigned Veterans Law Judge hearing in a November 2016 videoconference hearing.  A transcript of this hearing is of record.  


FINDINGS OF FACT

1.  February 2004 and February 2009 rating decisions were issued denying entitlement to service connection for PTSD, and the Veteran did not appeal the decisions.

2.  No service department records were received after these rating decisions. 

3.  The Veteran submitted a petition to reopen a claim of entitlement to service connection for PTSD on April 24, 2012.  


CONCLUSION OF LAW

The criteria for an effective date earlier than April 24, 2012, for the grant of service connection for PTSD are not met. 38 U.S.C. §§ 5107, 5110 (2014); 38 C.F.R. 
§§ 3.102, 3.114, 3.400 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in November 2016.  The Board finds that all requirements for hearing officers have been met.  38 C.F.R. § 3.1030(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  

II.  Effective Date

The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for PTSD.  Through his statements and from the record, the Board has discerned a few separate theories of entitlement.  First, the Veteran contends that the AOJ did not perform its required development during earlier claims of entitlement to service connection for PTSD.  Specifically, it was contended at the November 2016 Board hearing that the Veteran's reported stressors had remained the same since he initially submitted a claim of entitlement to service connection for PTSD in 2002.  Second, at the November 2016 hearing, the Veteran's representative referred to an ease in regulations pertaining to the verification of stressors in claims of entitlement to service connection for PTSD.  The Board will construe this as a request for a retroactive effective date for the grant of service connection pursuant to a liberalizing law under 38 U.S.C. § 5110(g) (2014); 38 C.F.R. § 3.114 (a) (2017).  Finally, the Board will consider the Veteran's claim under the general regulations used to determine the appropriate effective date for the grant of benefits.  38 C.F.R. § 3.400.  

	Law

Generally, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a) (2014); 38 C.F.R. § 3.400 (2017).  The effective date of an evaluation and award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q), (r) (2017).

With regard to the date of entitlement, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131 (2014); 38 C.F.R. § 3.303(a) (2017).  To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017).

With regard to the date of claim, prior to March 24, 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or representative, may be considered an informal claim.  A claim is defined as 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 that 
(1) indicates an intent to apply for one or more VA benefits and (2) identifies the benefit sought may be considered an informal claim.  38 C.F.R. § 3.155(a). The presence of the medical evidence alone does not establish an intent on the part of the veteran to file a claim for benefits, and medical evidence alone cannot be an informal claim.  Brannon v. West, 12 Vet. App. 32, 35 (1998). 

When determining the effective date of an award of compensation benefits, VA must review all the communications in the file after the last final disallowance of the claim that could be interpreted to be a formal or informal claim for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law.  38 U.S.C. 
§ 5110(g) (2014); 38 C.F.R. § 3.114(a) (2017).  Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement.  These provisions apply to original and reopened claims, as well as claims for increase. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a); McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997).  In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue.  38 C.F.R. § 3.114(a).  For claims received more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request for review.  38 C.F.R. § 3.114(a).

Finally, if at any time after a claim is denied VA receives or associates with the claims file service department records that existed but had not been associated with the claims file at the time VA first decided the claim, VA will reconsider the claim de novo.  38 C.F.R. § 3.156(c)(1) (2017).  If VA thereafter makes an award based in whole or in part on these newly associated service department records, the assigned effective date will be "the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156(c)(3); Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011) ("[A] claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim.").

	

History

The Veteran initially submitted a claim of entitlement to service connection for PTSD in February 2002.  On his application, he reported that he ran over an Iraqi soldier during his service in Saudi Arabia.  In a September 2002 statement, he reported that he witnessed dead bodies.  The AOJ submitted several requests to the National Personnel Records Center (NPRC) in 2002 in order to obtain the Veteran's personnel file and the details of his service in Southwest Asia on and after August 1990.  In a January 2003 response, the NPRC provided that the Veteran's military personnel folder was unable to be located, stating that the records either did not exist, that the NPRC did not have them, or that further efforts to locate the records at NPRC would be futile.  In an April 2003 rating decision, the AOJ denied the Veteran's claim.  The Board notes that the Veteran's DD 214 was of record at that time, showing the Veteran's receipt of the Kuwait Liberation Medal and Southwest Asia Service Medal, and over 2 years of foreign service.  

In November 2003, VA received a copy of the Veteran's service treatment records.  Thereafter, the AOJ cited to a review of the service medical records and again denied entitlement to service connection for PTSD in a February 2004 rating decision.  This denial was final as the Veteran did not appeal or submit new and material evidence within one year.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

The Veteran submitted a new claim for service connection for PTSD in February 2005.  No action was taken on this submission.  The Board notes that the February 2005 claim may not be construed as a valid Notice of Disagreement with the February 2004 rating decision because the claim did not express dissatisfaction or disagreement with the February 2004 rating decision, and it did not express a desire to appeal.  See 38 C.F.R. § 20.204 (2017).  

In July 2008, the Veteran requested that his claim of entitlement to service connection for PTSD be reopened.  In a September 2008 letter, the AOJ provided the Veteran with a detailed explanation of the information required to verify his reported in-service stressors.  The letter noted that it had been determined that all efforts to obtain the Veteran's military personnel file had been exhausted, and encouraged the Veteran to submit any copies of this file if in his possession.  In a September 2008 statement, the Veteran repeated his reported stressors from his 2002 claim, and added that an E-6 tried to burn a truck while he was still inside and that a sergeant burned the Veteran's clothes in Iraq.  In a contemporaneously submitted statement in support or claim for service connection for PTSD, the Veteran specified that the reported stressor occurred between February and April 1991.  He also listed the unit he was assigned to.

In a September 2008 memorandum, the AOJ made a formal finding on the Veteran's Official Military Personnel File, concluding that the Veteran's records were not available.  The memorandum referred to the September 2008 letter sent to the Veteran that provided 10 days from the receipt of the letter for the Veteran to provide any personnel records in his possession.  The memorandum noted that no records had been received.  In a subsequent September 2008 letter, the AOJ asked for more specific information regarding the Veteran's reported stressors, particularly referring to the Veteran's most recent description in his statement from earlier that month.  The Veteran responded in an October 2008 statement.  The statement was no more specific than his statements submitted in September 2008, however.  The AOJ sent the Veteran another letter later in October 2008, asking for more specific evidence to corroborate the Veteran's reported stressors.  The Veteran did not respond to this letter.

In a January 2009 memorandum, the AOJ made a formal finding of stressor unavailability.  The series of correspondences sent and received in September and October 2008 were listed and it was determined that the information required to corroborate the stressful events described by the Veteran was insufficient to send to the Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records.  Thereafter, in a February 2009 rating decision, the AOJ denied the Veteran's claim, finding that new and material evidence had not been received sufficient to reopen a claim of entitlement to service connection for PTSD.  This denial was final as the Veteran did not appeal or submit new and material evidence within one year.  38 U.S.C. § 7105; 38 C.F.R. § 20.1103.

The Veteran submitted a claim to reopen on April 24, 2012.  In a May 2012 examination request, the RO noted that although there were no specific stressors claimed, the Veteran served in a hostile area.  In a June 2012 VA examination, the examiner provided a positive nexus opinion, noting that the Veteran's claimed stressors were related to his fear of hostile military or terrorist activity, based on traumatic events that occurred ruing his deployment in Operation Desert Storm.  IN a July 2012 rating decision, the RO granted connection was granted, effective April 24, 2012.

	Analysis

First, the Board notes that service department records were never received after a final rating decision.  The Veteran's claim was reconsidered after receipt of the service treatment records.  Furthermore, the Veteran's personnel records were never obtained.  Accordingly, 38 C.F.R. § 3.156 (c)(3) does not apply.  Reconsideration of a previously denied claim is not possible absent the receipt of service department records.  

Second, under the general rules for earlier effective dates, because the previously denied claim of entitlement to service connection for PTSD is not reconsidered, the grant of service connection for PTSD was based on a claim reopened after the final disallowances in February 2004 and February 2009.  In such circumstances, the effective date of the award of service connection is the later of the date of receipt of the claim or the date entitlement arose.  38 C.F.R. § 3.400(r).  Here, the claim was received on April 24, 2012.  No application for service connection, formal or informal, was received prior to that date.  Accordingly, there is no earlier effective date possible under the regulation, even if the date of entitlement was earlier.  Thus, an earlier effective date is denied under this theory of entitlement.  

Finally, the Board finds that the theory that a retroactive effective date is warranted for the grant of service connection to PTSD pursuant to a liberalizing law is inapplicable here.  See 38 U.S.C. § 5110(g) (2014); 38 C.F.R. § 3.114(a).  On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of in-service stressors involving "fear of hostile military or terrorist activity."  See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (July 13, 2010); Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 41,092 (July 15, 2010) (correcting the effective and applicability dates).  This regulation, codified in 38 C.F.R. § 3.304 (f)(3), holds that if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist ... confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor."  This regulatory amendment served as the basis for the grant of service connection for PTSD in the instant claim.  

The amendments to 38 C.F.R. § 3.304(f)(3), however, are not considered a liberalizing law under 38 C.F.R. § 3.114 (2017).  See Stressor Determinations, 75 Fed. Reg. 39,843.  As 38 C.F.R. § 3.304(f)(3) governs procedural matters rather than creates a new basis for entitlement to service connection for PTSD, it merely relaxes under certain circumstances the evidentiary standard for establishing occurrence of a stressor.  See Stressor Determinations, 75 Fed. Reg. 39,843.  As a result, 38 U.S.C. § 5110(a), rather than 38 U.S.C. §§ 5110(g), is applicable to awards under this rule.  Thus, the effective date of benefits awarded pursuant to 38 C.F.R. § 3.304(f)(3) will be assigned in accordance with the facts found, but will not be earlier than the date of claim.  38 U.S.C. § 5110 (a).  Thus, the appropriate effective date should be determined under the general rule for effective dates, as applied above.  38 U.S.C. § 5110(a) (2014); 38 C.F.R. § 3.400 (2017).

In sum, the earliest effective date permitted under the law is April 24, 2012, the date of receipt of the Veteran's claim to reopen a claim of entitlement to service connection for PTSD.  38 C.F.R. § 3.400(r).  The appeal is denied.  38 U.S.C. 
§ 5110 (2014); 38 C.F.R. §§ 3.1 (p), 3.114, 3.155, 3.400 (2017).

ORDER

An effective date earlier than April 24, 2012, for the grant of service connection for PTSD is denied.  




____________________________________________
K. MILLIKAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs