Citation Nr: 1815708 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-06 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an effective date earlier than April 2, 2003, for the grant of service connection for posttraumatic stress disorder (PTSD) with panic disorder not otherwise specified (NOS) and major depressive disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Wulff, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1983 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction was subsequently transferred to the RO in New York, New York. In the July 2013 rating decision, the RO granted service connection for PTSD with panic disorder and depressive disorder effective from April 2, 2003. In his December 2013 substantive appeal, the Veteran requested a hearing before the Board; however, he subsequently withdrew that request. Therefore, the Board deems the hearing request withdrawn. See 38 C.F.R. § 20.704(e) (2017). This appeal was processed using the Veterans Benefits Management System (VBMS) electronic claims processing system. The Board notes that additional VA medical records have been associated with the claims file since the November 2013 statement of the case. However, a review of that evidence reveals that it is not relevant to the disposition of the effective date issue on appeal. Therefore, a waiver from the Veteran or a remand to the AOJ for issuance of a supplemental statement of the case is not required. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. FINDINGS OF FACT 1. The Veteran's September 10, 1999, claim for service connection for PTSD can reasonably be construed as a claim for service connection for an acquired psychiatric disorder. 2. In a July 2001 rating decision, the RO denied service connection for PTSD. The Veteran did not appeal that decision, but new and material evidence was received within the one-year appeal period. 3. The Veteran's September 10, 1999, claim for an acquired psychiatric disorder other than PTSD, to include panic disorder NOS and major depressive disorder, remained pending until service connection was granted in the July 2013 rating decision. 4. The earliest date of claim for service connection for an acquired psychiatric disorder is September 10, 1999, which is later than the date entitlement arose. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria are met for an effective date of September 10, 1999, but not earlier, for the grant of service connection for PTSD with panic disorder NOS and major depressive disorder. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.156, 3.400, 20.200, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has asserted that VA medical records dated from 1992 to 1994 from the Coatesville VA Medical Center (VAMC) document treatment for psychiatric disorders. See December 2013 statement in support of claim. He has also contended that VA failed in its duty to assist by not properly diagnosing his PTSD. However, the effective date assigned herein is based on the date of the claim, and as discussed below, the VA treatment records cannot constitute a formal claim. There is no indication that any outstanding VA medical records would have a material outcome on the decision. Similarly, a current VA examination and opinion would not have any bearing on the outcome of this decision and are not needed to fairly decide the issue of entitlement to an earlier effective date. See 38 U.S.C. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C). Neither the Veteran nor his representative has raised any other 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). Law and Analysis Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date for an award of 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, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2). This provision is not applicable to this case, as a claim for service connection for PTSD, panic disorder NOS, and major depressive disorder was not received within one year of the Veteran's separation from service. The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C.A. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed"). In the Sears case, the Court explained that the statutory framework did 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. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. Generally, a decision of the RO that is not timely appealed becomes final and binding in the absence of clear and unmistakable error (CUE). In order for a veteran to be awarded an effective date based on an earlier claim, he or she has to show CUE in the prior denial of the claim. 38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). A claim for benefits based on CUE in a prior final rating decision entails special pleading and proof requirements to overcome the finality of the decision by collateral attack because the decision was not appealed during the appeal period. Fugo v. Brown, 6 Vet. App. 40 at 44 (1993); Duran v. Brown, 7 Vet. App. 216, 223 (1994). In order for a claimant to successfully establish a valid claim of CUE in a final RO rating decision, the claimant must articulate with some degree of specificity what the alleged error is, and unless the alleged error is the kind of error that, if true, would be CUE on its face, the claimant must provide persuasive reasons explaining why the result of the final rating decision would have been manifestly different but for the alleged error. Luallen v. Brown, 8 Vet. App. 92, 94 (1995); Fugo, 6 Vet. App. at 44, review en banc denied, 6 Vet. App. 162, 163 (1994) (noting that pleading and proof are two sides of the same coin; if there is a heightened proof requirement, there is, a fortiori, a heightened pleading requirement). In this case, the Veteran and his representative have not specifically alleged CUE in the prior final decision. In addition, another exception applies when evidence, other than service treatment records, is received in the appeal period following a subsequent disallowance, resulting in a later grant of service connection. In that situation, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400 (q)(1). That is, under 38 C.F.R. § 3.156 (b), when new and material evidence is received prior to the expiration of the appeal period (one year for a rating decision and 60 days for a statement of the case), it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. VA must evaluate submissions received during the appeal period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The Court has also indicated that 38 C.F.R. § 3.156(b) is a veteran-friendly provision that allows the assignment of an effective date of the original claim when certain requirements are met. See also 72 Fed. Reg. 28,778 (May 22, 2007) (explaining that §§ 3.156(b) and 3.400 "provide a claimant-friendly effective date rule for awards based on evidence received while a claim is on appeal or before the appeal period expires"). If VA could merely determine finality of a rating decision without considering this provision, it would not only be not-veteran-friendly but also create the possibility that VA, by not considering evidence and waiting for the decision to be final, deprived the Veteran of an earlier effective date associated with the claim. See Young v. Shinseki, 22 Vet. App. 461 (2009). Section 3.156(b) may apply whenever the Board is making a finding or conclusion involving the finality of a rating decision, including in: earlier effective date claims, claims to reopen, claims involving CUE, and questions regarding the timeliness of an NOD or appeal. In addition, another exception applies when evidence, other than service treatment records, is received in the appeal period following a subsequent disallowance, resulting in a later grant of service connection. In that situation, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA prior to that date, the former regulations apply, as provided below. A specific claim in the form prescribed by VA 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). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit 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. 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). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). Raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007). In this case, the Veteran has contended that he is entitled to an effective date prior to April 2, 2003, for the grant of service connection for PTSD with panic disorder NOS and major depressive disorder. He has asserted that an earlier effective date is warranted because his medical records establish that he was diagnosed with an acquired psychiatric disorder since at least 1994. See, e.g., December 2013 statement in support of claim. Historically, on September 10, 1999, the Veteran filed a claim for service connection for PTSD due to mental anguish inflicted on him during service. In a November 1999 deferred rating decision, the RO characterized the claim as entitlement to service connection for any neuropsychiatric disorder, including PTSD. Thereafter, in a July 2001 rating decision, the RO denied service connection for PTSD. In so doing, the RO noted that the Veteran failed to report for his scheduled VA examination. The RO also stated that the evidence did not show a confirmed diagnosis of PTSD and that the Veteran's service treatment records did not document any treatment, complaints, or diagnosis of PTSD. At the time of the July 2001 rating decision, the evidence of record included the Veteran's service treatment records, VA medical records, and lay statements. The Veteran's service treatment records included an April 1988 report of medical history in which he reported having problems sleeping, depression, and excessive worry. The VA medical records also showed that the Veteran received treatment for psychiatric disorders, variously diagnosed as anxiety, recurrent depression, and bipolar disorder. A December 1996 VA medical record further noted that the Veteran started using alcohol when he became depressed due to his right knee injury. In addition, a May 1999 VA mental health record noted that the Veteran was traumatized by a severe knee injury during service and that he had been diagnosed with manic depression and PTSD since that time. Prior to the expiration of the appeal period, additional VA medical records were associated with the claims file in November 2001 and July 2002 that are pertinent to the PTSD claim. These records included an August 2001 active medication list that noted the Veteran was prescribed antipsychotic medication. In addition, an August 2001 VA admission record noted that an initial impression of PTSD, and a September 2001 domiciliary treatment record noted that the Veteran was admitted for substance dependence with PTSD. A March 2002 VA pain survey indicated that the Veteran complained of stress, anxiety, and anger in connection with his right knee pain that had its onset in 1987. The evidence suggests that the Veteran was diagnosed with PTSD and provides additional details regarding a potential relationship between PTSD and the Veteran's military service and right knee disorder. Accordingly, the Board finds that the July 2001 rating decision did not become final because new and material evidence was received within one year of issuance of the rating decision. 38 C.F.R. § 3.156(b). Moreover, the Board notes that, in the July 2001 rating decision, the RO's analysis was limited to the issue of entitlement to service connection for PTSD. Notably, the RO did not adjudicate whether service connection was warranted for any psychiatric disability other than PTSD, despite the earlier deferred rating decision that had characterized the issue more broadly. The Court has held that, although a veteran may file a claim for service connection for PTSD, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, in his September 1999 claim, the Veteran requested that VA review his medical records for information regarding his PTSD and the mental anguish inflicted on him during service. As discussed above, the VA medical records associated with the claims file at the time of the July 2001 rating decision revealed diagnoses of several psychiatric disorders, including recurrent depression and anxiety. In addition, as noted above, in the November 1999 deferred rating decision, the RO characterized the issue as a claim for any neuropsychiatric disorder. Thus, the Veteran's description of the claim and the evidence obtained by VA in support of his claim reasonably encompassed acquired psychiatric disorders other than PTSD. Based on the foregoing, the Board concludes that a formal or informal claim for service connection for an acquired psychiatric disorder other than PTSD remained pending since September 10, 1999. On March 21, 2003, the Veteran requested that his claim for service connection for PTSD be reopened. Thereafter, on April 2, 2003, the Veteran asserted that his right knee disorder was a major cause of his depression, nightmares, flashbacks, and his inability to maintain friendships and relationships. In a July 2006 rating decision, the RO determined that new and material evidence had not been received to reopen a claim for service connection for PTSD. The RO also separately denied service connection for depression, generalized anxiety disorder, and bipolar disorder. The Veteran filed a notice of disagreement in August 2006. Thereafter, a statement of the case was issued in April 2009, and the Veteran perfected a timely appeal. In a July 2013 rating decision, the RO subsequently granted service connection for PTSD with panic disorder NOS and major depressive disorder and assigned a 100 percent evaluation effective from April 2, 2003. The grant of service connection was based on a December 2012 VA examiner's opinion that the Veteran's psychiatric disorder, diagnosed as PTSD, panic disorder NOS, and major depressive disorder, was related to trauma experienced during his in-service knee surgery. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that September 10, 1999, is the proper effective date for the grant of service connection for PTSD with panic disorder NOS and major depressive disorder. With regard to the date of claim, a review of the claims folder reveals no informal or informal claim for service connection for PTSD or any other acquired psychiatric disorder between the Veteran's separation from service in May 1988 until the September 10, 1999, claim for service connection was received. 38 C.F.R. §§ 3.1 (p), 3.155(a). In making this determination, the Board notes that there are VA treatment records noting a diagnosis prior to September 10, 1999. Although the date of a VA or service department hospitalization or examination may be accepted as an informal claim in some instances under 38 C.F.R. § 3.157(b), that regulation is not applicable to the VA treatment records in this case. The type of reopening contemplated under 38 C.F.R. § 3.157(b) is for compensation where a claim for service connection has been allowed but "compensation disallowed for the reason that the service-connected disability is not compensable in degree." See MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006) (holding that medical records do not satisfy the regulatory requirements of an informal claim if the condition disclosed in the medical records had not previously been determined to be service-connected); Crawford v. Brown, 5 Vet. App. 33 (1993). In this case, a claim for service connection for a psychiatric disorder had been allowed before the July 2013 rating decision was promulgated. Accordingly, the provisions of 38 C.F.R. § 3.157(b) do not apply in this case. As discussed above, the July 2001 rating decision that denied service connection for PTSD did not become final because new and material evidence was obtained prior to expiration of the appeal period. 38 C.F.R. § 3.156(b). In addition, the RO did not adjudicate the Veteran's claim for an acquired psychiatric disorder other than PTSD in the July 2001 rating decision. Thus, the September 10, 1999, claim for PTSD and other acquired psychiatric disorders remained pending, and the resolution of this appeal rests on the date that entitlement arose. With regard to the date of entitlement, the term "date entitlement arose" is not defined in the current statute or regulation. However, the 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). It is important to note that an effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45 (2011). 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. 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). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. In this case, in an April 1988 report of medical history, the Veteran reported having problems sleeping, depression, and excessive worrying. The Veteran's VA medical records also show numerous diagnoses of depression prior to September 1999. For example, an October 1996 VA medical record noted that the Veteran was admitted for treatment for substance abuse and continuous depression. In addition, a December 1996 VA medical record noted that the Veteran started using alcohol when he became depressed due to his knee injury. VA medical records dated in 1998 also note ongoing treatment for stress and anxiety. In a May 1999 VA medical record, a VA psychiatrist noted that the Veteran was diagnosed with manic depression, PTSD, and alcohol abuse since his in-service knee injury. The VA psychiatrist also noted a diagnosis of prolonged PTSD. An October 1999 VA medical record further noted that the Veteran continued to receive biofeedback treatment for depression due to his knee injury. In addition, the RO based its determination to grant service connection on the opinion and findings from a December 2012 VA examination. The December 2012 VA examiner diagnosed the Veteran with PTSD, panic disorder NOS, and major depressive disorder. The examiner opined that the Veteran's psychiatric disorder was related to his knee injury and surgery due to the fact that he perceived an actual serious injury and threat to his physical integrity. He also noted that the Veteran continued to relive the moments of intense fear. Although the VA examiner did not render the opinion resulting in the grant of service connection until December 2012, he based that determination on a full review of the evidence of record. McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Moreover, the VA examiner stated that it was not possible to differentiate between the symptoms attributable to the Veteran's diagnosed psychiatric disorders. Therefore, resolving any reasonable doubt in favor of the Veteran, the date of the claim received on September 10, 1999, is later than the date entitlement arose. The effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Accordingly, the Board concludes that September 10, 1999, is the proper effective date for the award of service connection for PTSD with panic disorder, NOS, and major depressive disorder. ORDER An effective date of September 10, 1999, for the grant of service connection for PTSD, panic disorder, NOS, and major depressive disorder, is granted. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs