Citation Nr: 1820544 Decision Date: 04/05/18 Archive Date: 04/16/18 DOCKET NO. 11-05 768 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an effective date prior to October 25, 2000, for the grant of service connection for post-traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD A. N., Associate Counsel INTRODUCTION The Veteran served on active duty from February 1963 to February 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A December 2010 rating decision granted an effective date of April 9, 2008, rather than the originally assigned effective date of April 16, 2008, for service connection for PTSD. In a written statement dated in October 2011, the Veteran withdrew his request for a videoconference hearing before the Board at the RO, as he had requested on his VA Form 9 received in March 2011. In May 2014, the Board issued a decision that (in pertinent part) granted an earlier effective date of October 25, 2000 for the award of service connection for PTSD. In October 2017, the United States Court of Appeals for Veterans Claims (CAVC) granted a Joint Motion for Partial Remand (JMR) that vacated and remanded the portion of the May 2014 decision that denied entitlement to an effective date prior to October 25, 2000, for the grant of service connection for PTSD. The Board's May 2014 decision additionally (1) granted a 100 percent rating for PTSD, effective from April 9, 2008 and (2) granted SMC at the rate authorized by 38 U.S.C. § 1114(s) for the period since April 9, 2008. The JMR granted by the Court expressly requests that these determinations not be disturbed, and those issues are not to be revisited by the Board at this time. FINDING OF FACT There is no earlier communication than October 25, 2000 contained in the claims file from the Veteran showing evidence of an intention to file a claim for the issues identified in his initial claim. CONCLUSION OF LAW The criteria for an earlier effective date than October 25, 2000, for the grant of service connection for PTSD, are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.159, 3.400(b)(2)(i) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Early Effective Date Under the laws administered by VA, the effective date based on an initial claim for compensation is the day following separation from active service or 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). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 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). Every claimant has the right to written notice of the decision made on his or her claim. 38 C.F.R. § 3.103. The bases for remand in the October 2017 JMR stated, "The parties concur that the Board erred because it did not provide an adequate statement of reasons or bases to support a determination that the October 25, 2000 letter from Appellant was the earliest document reflecting an intent to file a claim for entitlement to Department of Veterans Affairs (VA) benefits based on service connection for an acquired psychiatric condition." Citing Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009), both parties agreed that the Board failed to address whether relevant evidence, in the form of letters written by the Veteran dated May 2, June 3, and July 12, 1978, could be construed as informal claims for an acquired psychiatric condition prior to October 25, 2000. The Board has reviewed the May, June, and July, 1978 letters in the claims file. However, a review of these letters does not support finding that the Veteran's statements contained therein could be reasonably construed as informal claims for an acquired psychiatric condition prior to October 25, 2000. In the May 1978 letter, the Veteran indicated that he was writing in reference to his "service connected disability." The Veteran's only service connected disability as of May 1978 was a fracture of the superior articular facet C5 and residuals of dislocation of C4 and C5. See April 1976 Rating Decision. Thus, it is only reasonable to conclude that the "nerves" he referenced in the May 1978 letter are with regard to this condition, as opposed to a psychiatric condition. The Veteran indicated that he had received treatment for a pinched nerve in his neck. He also made vague references to chiropractic treatment and treatment for "nerves," as well as left arm and bilateral leg pain. In the June1978 letter, the Veteran stated that he "went to the doctor and the hospital because I was hurting so bad my nerves were running me wild." He also stated that he wanted 100 percent disability because his condition was the result of his military service. The Veteran indicated in the July 1978 letter that he was providing a statement from a hospital in Jellico, Tennessee with the dates that he was treated at the emergency room for his "nerves" as a result of being "seriously injuried (sic) in a US Army convoy." A July 1978 deferred rating decision indicated that the "Veteran claims increase in severity of [service connected] disability with residual left arm impairment." Furthermore, in August 1978, the Veteran completed a report of medical examination for disability evaluation and stated, "My complaint is same as always, my left arm and both legs, are in bad shape my feet burn like fire, and hurt all the time, my neck [and] whole back especially the sacrall (sic) area are in constant pain, I have severe weakness in left arm." That same day, the Veteran underwent a VA neuropsychiatric examination for neck, back, and coccyx pain; left arm weakness; and leg and arm problems. During the examination, the Veteran reported that while he was in-service, he fractured his neck in an accident in a military jeep in West Germany in 1965. The Board notes that the JMR referenced an August 1976 VA Medical Certificate, in which the Veteran stated he was bothered by "nervousness." However, the Veteran did not indicate any intent to seek a service connection claim for a psychiatric condition. Instead, the Veteran indicated on the certificate that he was seeking status connection for "20% neck" and he referenced his status-post C4-5 fracture. The Board notes that the Veteran underwent psychiatric examinations in December 1977, which resulted in diagnoses of paranoid personality with some reactive depression and somatization and schizoid neuroticism. Nevertheless, these reports do not contain a claim from the Veteran expressing his intent to seek service connection for the disorder. While there may have been evidence that the Veteran had psychiatric conditions that were caused by service prior to October 2000, this is not synonymous with filing a claim for service connection. See Brannon v. West, 12 Vet. App. 32, 35 (1998) ("The mere presence of the medical evidence does not establish an intent on the part of the [claimant] to seek . . . service connection. . . ."). Moreover, the mere mention of a condition in a medical record alone cannot be construed as a claim for service connection. 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). In light of the above-referenced evidence, the Board finds no evidence indicating that the Veteran intended to file a claim of service connection for an acquired psychiatric disorder prior to October 25, 2000. As discussed previously, an April 1976 Rating Decision indicated that the Veteran's only service connected disability was a cervical fracture. The Veteran made references in the May, June, and July 1978 letters to a pinched nerve in the neck, as well as vague references to "nerves" and left arm and bilateral leg pain. He also indicated that he had been hospitalized for "nerves" as a result of being injured in an Army convoy. In an August 1978 VA examination (for which he was examined for neck, left arm, leg, and back pain), he explained that he had fractured his neck in an accident in a military jeep. He also reported that, at least until that point, he had one complaint, which was the "same as always" (i.e., neck, left arm, leg, and back pain). As such, the Veteran's statements in the May, June, and July 1978 letters cannot be reasonably construed as informal claims for service connection for an acquired psychiatric condition prior to October 25, 2000. Instead, the evidence indicates that these letters were made in reference to a claim for an increased rating for the Veteran's service-connected cervical fracture and residuals, as opposed to a claim of service connection for an acquired psychiatric disorder. Thus, the Board concludes that an earlier effective date than October 25, 2000, for a grant of service connection for PTSD is not warranted. ORDER An earlier effective date for the grant of service connection for PTSD is denied. ____________________________________________ M.H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs