Citation Nr: 18118348 Decision Date: 07/13/18 Archive Date: 07/12/18 DOCKET NO. 12-03 997 DATE: July 13, 2018 ORDER Entitlement to an effective date earlier than October 15, 2009 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date earlier than October 15, 2009 for the grant of entitlement to special monthly compensation based on the need of aid and attendance of another person is denied. FINDINGS OF FACT 1. The Veteran’s last service connection claim for PTSD was denied in a June 2003 rating decision. The Veteran did not appeal this decision; nor has he filed a proper motion for clear and unmistakable error in the June 2003 decision; or shown that the presumption of regularity has been rebutted in terms of receipt of notice of the June 2003 rating decision. 2. The Veteran filed a petition to reopen service connection for PTSD on October 15, 2009. 3. The Veteran did not submit a claim for service connection for PTSD between June 2003 (the date of the last RO decision denying his claim) and October 15, 2009. 4. The Veteran did not provide sufficient information for VA to identify and obtain the records from the National Archives to confirm the fellow service members he knew that were killed in action until after he submitted his October 15, 2009 petition to reopen service connection for PTSD. 5. The Veteran did not submit a claim for special monthly compensation prior to October 15, 2009. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 15, 2009, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 3.156(c)(1)(2). 2. The criteria for an effective date prior to October 15, 2009, for the award of special compensation based on the need of aid and attendance of another person have not been met. 38 U.S.C. §§ 1114(l), 5110, 7105; 38 C.F.R. §§ 3.400, 3.401(a)(1), 3.350(b), 3.352(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In November 2015, the Veteran, along with his son, daughter, and friend testified before the undersigned Veterans Law Judge at a Board hearing at the RO. The Board issued a decision in February 2016 denying the Veteran’s earlier effective date claim for service connection for PTSD and for special monthly compensation. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (Court), which issued a memorandum decision in June 2017 vacating the Board’s decision, finding that 38 C.F.R. § 3.156(c) had not been considered as a potentially relevant regulation. The Court found that the issue of entitlement to an earlier effective date for special monthly compensation was inextricably intertwined with the earlier effective date claim for service connection for PTSD, and vacated and remanded both issues. The case is now returned for appellate review. Effective Date Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The same is true for an award based on a claim reopened after final adjudication, as VA laws and regulations stipulate that the effective date of such an award shall be fixed in accordance with the facts found, but shall not be earlier than the date the claim was received, or the date entitlement arose, whichever is later. See id.; 38 C.F.R. §3.400(r). VA regulation 38 C.F.R. § 3.156(c)(1)(2) provides that notwithstanding any other section in this part, 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, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) 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 (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. (2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA 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 Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(1)(2). 1. Entitlement to an effective date earlier than October 15, 2009 for the grant of service connection for posttraumatic stress disorder (PTSD) The Veteran contends that he is entitled to an effective date earlier than October 15, 2009 for his grant of service connection for PTSD. In statements and testimony, the Veteran has asserted that he was diagnosed with PTSD long before October 2009 and that therefore service connection for PTSD should be based on the date of his first diagnosis, in the 1980s or even as early as the 1970s. See, e.g., June 2010 statement in support of the claim; November 2015 Board hearing testimony. As noted above, the Court noted in its memorandum decision vacating the Board’s 2016 decision that 38 C.F.R. § 3.156(c) is potentially applicable to the Veteran’s claim, as an exception to the rule of new and material evidence being required to reopen a previously denied claim. The Court pointed out that since the RO ultimately granted service connection for the Veteran’s PTSD, in part, based on information from the National Archives that had not been previously considered, his claim could have been pending based on the provisions of 38 C.F.R. § 3.156(c)(1). The question for the Board is whether the Veteran is entitled to an effective date earlier than October 15, 2009 for the grant of service connection for PTSD. The Board concludes that, while the RO granted service connection for the Veteran’s PTSD, in part, based on information from the National Archives, Section (2) of 38 C.F.R. § 3.156(c) applies in that VA could not have obtained the National Archives records previously, because the Veteran in his prior claims did not provide sufficient information for VA to identify and obtain the records from the National Archives. See 38 C.F.R. § 3.156(c)(2). By way of history, the Veteran filed a claim to establish entitlement to service connection for “nerves,” “short temper,” “violence,” and depression in July 1986. In a December 1986 decision, the RO denied service connection for nervous conditions. The RO determined that an acquired neurosis was not shown in service and that a substance abuse disorder was of misconduct etiology. The Veteran did not appeal the RO’s denial. Thus, the December 1986 decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In January 1992 the Veteran filed a claim to establish service connection for PTSD. He was scheduled for an examination in April 1992 but the examination was cancelled. In July 1992 the RO denied service connection for PTSD noting that the Veteran did not report for the scheduled examination or respond to the RO’s request for more information. The Veteran submitted a petition to reopen service connection for PTSD in January 1993 (within one year of the RO’s denial in July 1992). The RO denied the Veteran’s claim in a June 1993 rating decision noting that the service treatment records contained no reference to a chronic psychiatric disorder of any type during active duty service. The RO also noted that the Veteran was asked to furnish information relative to his claim but did not report any symptoms or complaints relevant to PTSD. The RO further noted that the Veteran did not have any treatment records at the Cleveland VAMC and that an April 1993 VA examination made no reference to PTSD. Thus, the RO determined that there was no current evidence diagnosing PTSD and the Veteran had not provided any medical evidence of symptomatology or history of this disorder. The Veteran filed a notice of disagreement with this rating decision in July 1993, but after a statement of the case was issued in November 1993, did not file a substantive appeal to appeal the decision to the Board. Thus, the July 1993 rating decision is final, as well. Id. In November 2000 the RO sent the Veteran a letter notifying him that it appeared that he was seeking to reopen a service connection claim for PTSD. The RO denied service connection for PTSD in a May 2001 rating decision, finding that new and material evidence had not been submitted to reopen the claim. It was noted that outpatient treatment records from the Youngstown VAMC from January 1993 to November 2000 had been reviewed, and that the Veteran had failed to report for an examination that had been scheduled in April 2001. In March 2002, within one year since the May 2001 rating decision, the Veteran submitted another petition to reopen service connection for PTSD and major depression. The Veteran underwent a VA examination in March 2003 and was diagnosed as having PTSD. The examiner noted the traumatic incidents the Veteran described as occurring during his service in Vietnam and determined that it was possible that the Veteran’s PTSD contributed to his emotional instability and recurrent depressive symptoms that had plagued him since his return from the military. In a June 2003 rating decision, the RO denied service connection for PTSD, generalized anxiety disorder, and major depressive disorder, finding that new and material evidence had not been submitted to reopen the claim. The RO noted that even though the VA examination indicated that the Veteran had a diagnosis of PTSD based on the Veteran’s history, the RO had not been able to corroborate a specific stressor that occurred in Vietnam, because sufficient details, such as a date, time, and place, had not been provided. The Veteran did not appeal the June 2003 rating decision. Thus, the rating decision is final. Id. No correspondence was received from the Veteran after the June 2003 rating decision indicating his desire to reopen his service connection claim for PTSD until October 15, 2009. After the Veteran submitted his claim, he was provided with a VA examination in February 2010. The RO noted that the Veteran was claiming service connection for PTSD based on losing four members of his unit being killed in action while he was in Vietnam. It was further noted that review of the military records and a search of the National Archives indicated that the Veteran was a part of the same unit, and that these soldiers were killed in action. Therefore, his military stressor was conceded. The VA examiner was asked to provide an opinion as to whether the Veteran’s current diagnosis of PTSD was related to his conceded military stressor. After evaluating the Veteran, the examiner determined that based on the examiner’s clinical experience and expertise, along with a review of the pertinent medical records, the Veteran’s PTSD symptoms were at least as likely as not related to his conceded military stressors. In an April 2010 rating decision, the RO granted service connection for PTSD, effective October 15, 2009, with a 100 percent disability rating assigned. The RO noted that the decision was based on the Veteran’s conceded military stressor, his long history of treatment for psychiatric symptoms, and the positive medical opinion provided in February 2010. As noted above, the last June 2003 rating decision was not appealed and while the Veteran has generally asserted that he should have been granted service connection for PTSD based on earlier evidence in the file dating back to service, he has not asserted that it was clear and unmistakable error not to grant service connection for PTSD based on the evidence provided with his previous claims. Clear and unmistakable error also has not been shown. In addition, the Veteran did not submit any correspondence regarding his service connection claim for PTSD after the last time it was denied in June 2003; nor did he submit any communication indicating any intent to file a claim to reopen service connection for PTSD prior to October 15, 2009. The Veteran generally alluded to a lot of the paperwork being sent to the wrong address at the Board hearing. See November 2015 Board hearing transcript, p. 11. However, he did not specifically allege that a notice letter for any of the prior rating decisions was sent to the wrong address. Moreover, there is no record that any of the notice letters from the prior rating decisions were returned as undeliverable. In this regard, the presumption of regularity states that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005). For the purposes of this appeal, the presumption of regularity extends to the Veterans Service Center Manager and to other officials at the RO who were responsible for notifying the Veteran of the prior rating decision in connection with his claim for service connection for PTSD. See Woods v. Gober, 14 Vet. App. 214, 220-21 (2000); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO). Significantly, the Veteran may rebut the above presumption by submitting clear evidence to the effect that VA’s regular mailing practices were not followed in his case. In this regard, the Court has held that the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). An ‘assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA’s mailing process.’ Jones v. West, 12 Vet. App. 98, 102 (1998). Conversely, clear evidence sufficient to rebut the presumption of regularity has been found when VA addressed communications to a wrong street name, wrong street number, or wrong zip code in circumstances indicating that such errors were consequential to delivery. See, e.g., Fluker v. Brown, 5 Vet. App. 296, 298 (1993); Piano v. Brown, 5 Vet. App. 25, 26-27 (1993) (per curiam order); see also Crain, 17 Vet. App. at 188-89. If the Veteran succeeds in rebutting the presumption of regularity, the burden then shifts to VA to establish that regular administrative practices were, in fact, observed. See Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992); Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) (the presumption of regularity allows courts to presume that what appears regular is regular, the burden shifting to the claimant to show the contrary); see also Baxter v. Principi, 17 Vet. App. 407, 410 (2004). In the instant case, the December 1986, June 1993, and June 2003 notice letters associated with the respective rating decisions were sent to the Veteran’s correct address of record and not returned as undeliverable. At the time of the June 2003 letter, the Veteran had provided several different mailing addresses or places of residence. It appears that the RO sent the June 2003 notice letter to the last known address of record. The Veteran also has not specifically alleged nonreceipt of the notice letter. Therefore, absent clear evidence to the effect that VA’s regular mailing practices were not followed in the instant case, the Board finds that the presumption of regularity has not been rebutted. Jones, supra; Crain, supra. Also, in response to the Court’s memorandum decision, the provisions of 38 C.F.R. § 3.156(c)(1) do not apply as an exception to the rule of new and material evidence being required to reopen a claim in this case. While the National Archives records that had not been previously considered were used to grant the Veteran’s service connection claim for PTSD, VA could not previously verify the Veteran’s stressors, as the Veteran did not provide the information concerning the fellow service members killed in combat until his most recent claim. Previously, a March 2003 VA examination report notes that the Veteran had great difficulty being specific regarding his traumas and had some inconsistencies in the events described that day, in comparison to events described on a previous evaluation. As noted, in finding that new and material evidence had not been received to reopen the claim, the RO noted in the June 2003 rating decision that there was no evidence of a confirmed stressor because the generalized stressor events were not specific and lacked details (i.e., specific dates, times, and place of other veterans’ deaths or participation in combat). The RO noted that the Veteran’s statements would not be verifiable by an objective source. As part of the Veteran’s October 15, 2009 petition to reopen service connection for PTSD, he submitted detailed information concerning fellow service members from his unit that were killed in combat, including the names and dates of the deaths. The RO used this information to verify that the individuals from the Veteran’s unit were killed in combat through research with the National Archives. VA could not have known that the Veteran knew these individuals killed in action until the Veteran notified VA of this information in November 2009 and January 2010. VA regulations specifically address this situation in 38 C.F.R. § 3.156(c)(2), noting that paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). Therefore, the RO previously could not have identified or obtained the records from the National Archives. Based on a careful review of the record, the Board finds that there is no evidence to support the assignment of an effective date earlier than October 15, 2009 for the grant of service connection for PTSD. The Board acknowledges the arguments set forth by the Veteran. Under the law, however, the effective date for a grant of service connection following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). As such, the RO assigned the earliest possible effective date for its grant of the reopened claim, which based on the procedural history as outlined in detail above was determined to be October 15, 2009. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Accordingly, the claim for entitlement to an effective date prior to October 15, 2009 for service connection for PTSD is denied. 2. Entitlement to an effective date earlier than October 15, 2009 for the grant of entitlement to special monthly compensation based on the need of aid and attendance of another person In July 2011, the RO granted entitlement to special monthly compensation based on aid and attendance criteria, with an effective date of October 15, 2009. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The Veteran appealed this rating decision asserting entitlement to an effective date earlier than October 15, 2009 for the assignment of special monthly compensation for aid and attendance. He generally testified that his PTSD had been severely disabling since his military service. In addition to the effective date regulations noted in the prior section addressing the PTSD claim, 38 C.F.R. § 3.401(a)(1) provides that awards of aid and attendance or housebound benefits, will be effective except as provided in § 3.400(o)(2), the date of receipt of claim or date entitlement arose, whichever is later. However, when an award of pension or compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional pension or compensation payable by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award’s retroactive period for which entitlement to the additional benefit is established. Special monthly compensation is payable to individuals who are permanently bedridden or are so helpless as a result of service-connected disability as to be in need of the regular aid and attendance of another person under the criteria set forth in 38 C.F.R. § 3.352(a). 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b) (3). Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: Inability of claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). In addressing this matter, the Veteran filed his claim for special monthly compensation based on the need of aid and attendance by another person in May 2010. He underwent an aid and attendance VA examination in June 2010, which noted that the Veteran required assistance with activities of daily living, based on his knees, back, and emotional illness from severe PTSD with depression. The RO granted entitlement to special monthly compensation in July 2011 based on the April 2010 rating decision, which granted service connection for PTSD assigning a 100 percent rating for symptoms of being emotionally labile and unable to seek assistance or protect himself from the hazards of everyday living. The effective date assigned was October 15, 2009, because the total evaluation for PTSD that was assigned as of that date was based in part due to symptoms of emotional instability. As the award of aid and attendance was based on the Veteran’s reopened claim for service connection for PTSD, the effective date cannot be prior than the date of such claim, which in this case, is October 15, 2009. See 38 C.F.R. § 3.401(a)(1). Therefore, the Veteran’s claim for an effective date prior to October 15, 2009 for the grant of entitlement to special monthly compensation is denied. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah B. Richmond