Citation Nr: 20003545 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 15-11 162 DATE: January 15, 2020 ORDER Entitlement to an earlier effective date than September 3, 2012, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for right knee disability is remanded. Entitlement to a disability rating in excess of 10 percent for left knee disability is remanded. FINDINGS OF FACT 1. An October 2002 rating decision denied the claim of entitlement to service connection for a dysthymic disorder. 2. The Veteran did not file a timely appeal of the October 2002 rating decision and the appeal became final. 3. Prior to the September 2012 claim to reopen, there were no pending requests to reopen that remained unadjudicated, and no appeals or new and material evidence were submitted during the applicable appellate periods. 4. The Veteran’s personnel records associated with the claims file on July 8, 2013, including her DD-215, are not relevant service department records as they do not relate to or contribute to establishing any element of service connection that was the basis for the grant of service connection. CONCLUSIONS OF LAW 1. The October 2002 rating decision that denied the claim for service connection for a dysthymic disorder became final. 38 U.S.C. §§ 5101, 5107, 5110, 7105; 38 C.F.R. §§ 3.104, 3.105. 2. The criteria for an effective date prior September 3, 2012, for the grant of service connection for PTSD, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1986 to July 1986 and from September 1990 to July 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal of January 2012 and January 2015 rating decisions of Regional Offices (RO) of the Department of Veterans Affairs (VA). In March 2015, the Veteran requested a hearing before a Veterans Law Judge at her local VA office, but in April 2019, she withdrew her hearing request. Initially, the Board notes that the Veteran and her representative have submitted arguments alleging clear and unmistakable error with the denial of entitlement to service connection for dysthymic disorder in the October 1, 2002 rating decision. This issue has not been adjudicated by the RO and the Board cannot adjudicate it in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006) (en banc) (assertion of CUE in an RO decision must first be presented to and decided by the RO before the Board has jurisdiction to decide the matter). It is therefore referred to the AOJ to include, to the extent appropriate, informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and provided such forms. See 38 C.F.R. § 3.155 (a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 19.9 (b) (continuing to provide for Board referral of unadjudicated claims). As such, the Veteran’s theories related to CUE in the October 1, 2002 rating decision will not be further addressed in this decision. Earlier Effective Date The Veteran contends that she is entitled to an earlier effective date than September 3, 2012, for the grant of service connection for PTSD. After a thorough review of the evidence, the Board finds that an earlier effective date for service connection is not warranted. 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 later. 38 C.F.R. § 3.400. Here, the Veteran initially filed a claim for service connection for PTSD in 1995. The Veteran was provided a VA examination in December 1995. A rating decision was issued denying entitlement to dysthymic disorder (also claimed as PTSD) in October 2002. The rating decision informed the Veteran that the claim, which was interpreted as a claim for dysthymic disorder, was denied because her service medical records did not show any treatment for dysthymic disorder in service and evidence did not demonstrate treatment shortly after service. The RO noted review of evidence that included, in pertinent part, her DD-214 showing service in the Gulf War, treatment records from February 11, 1998 through December 31, 1998, and a December 4, 1995 mental health examination. A letter was sent to the Veteran informing her of the determination to deny the claim. The Veteran did not appeal this decision within one year and new and material evidence was not received within that year. Therefore, the October 2002 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran’s current effective date has been granted from the date of her claim to reopen the claim for PTSD was received by the RO, September 3, 2012. As such (outside of a motion for CUE), an earlier effective date is only available if it is determined that the Veteran had a claim (formal or informal) for service-connection pending prior to the claim received on September 3, 2012, or if relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. First, the Board finds that there is no evidence of record to show that there was any communication from the Veteran indicating the intent to apply for service connection for PTSD between the final October 2002 rating decision and the Veteran’s September 3, 2012 claim. Accordingly, an earlier effective date due to a pending claim is not warranted. The Board also finds that official service department records that were associated with the claims file were not relevant to the Veteran to the matter at issue in the case. Pursuant to 38 C.F.R. § 3.156 (c), 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 38 C.F.R. § 3.156 (a). As used in § 3.156(c)(1), “relevant” means noncumulative and pertinent to the matter at issue in the case. Kisor v. Shulkin, 869 F.3d 1360, 1368-69 (Fed. Cir. 2017) (accepting VA’s interpretation of the relevancy requirement of 38 C.F.R. § § 3.156 (c), vacated on other grounds sub nom. Kisor v. Wilkie, 139 U.S. 2400. Such records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease. 38 C.F.R. § § 3.156 (c)(1). Records that are not included are 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 from any other official source. 38 C.F.R. § § § 3.156 (c)(2). An award made based all or in part on the records identified by 38 C.F.R. § § § 3.156 (c)(1) is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § § § 3.156 (c)(3). The Board notes that the claim in this case was filed after the amendments to § 3.156(c) that became effective on October 6, 2006, and the amended version of the regulation therefore applies. See 71 Fed. Reg. 52,455 (Sept. 6, 2006). In support of the Veteran’s argument, the claims file does indeed reflect that an updated DD 215, to include service medals and 8 pages of the Veteran’s military personnel record, to include recommendations for awards and a Certificate of Achievement for her contribution to operation Desert Shield, were added to the claims file in July 2013 and were not noted by the RO as having been reviewed at the time of the October 2002 rating decision. However, it is clear from the January 2015 rating decision that the ultimate award of service connection for PTSD was not due to the additional service records; rather, service connection was granted based on the favorable medical opinion provided by a November 2014 VA examiner. Further, the newly associated service personnel records do not contain information relevant to the grant of service connection for PTSD. Specifically, the Board notes that the Veteran’s DD-214 demonstrating her service in the Gulf War was already of record prior to the addition of the Veteran’s personnel records. Rather, the Veteran’s claim had previously been denied due to lack of a diagnosis of PTSD, which was not found by the December 1995 examiner. The examiner specifically noted that the data does not warrant a diagnosis of PTSD. Based on the evidence of record, the Board finds that that the grant of service connection for PTSD was not based all, or in part, on official service department records that existed and had not been associated with the claims file when VA first denied the claim. Rather, the award of service connection was based upon separate medical findings that were not of record at the time of the initial adjudication. Thus, readjudication of the Veteran’s claim based on the provisions of 38 C.F.R. § 3.156(c) is not warranted. Therefore, the Board finds that there is no basis upon which to justify granting an effective date earlier than September 3, 2012, and the appeal for an earlier effective date for the award of service connection for PTSD must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for right knee disability and entitlement to a disability rating in excess of 10 percent for left knee disability are remanded. A review of the entire claims file shows that the Veteran’s complained of worsening of her left knee disability in August 2014 VA treatment records. Additionally, the Veteran March 2015 VA Form 9 indicates that she disagrees that her knees were properly evaluated during her prior examination in July 2011. As such, the Board finds that a new VA examination would be of considerable assistance in determining the current severity of these disabilities. See Green v. Derwinski, 1 Vet. App. 121 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to evaluate the severity of her service-connected right knee and left knee disabilities. The examiner should provide an assessment of the current nature of the Veteran’s bilateral knee disabilities. Accordingly, the examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the condition. Also, all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups should be reported. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A-L Evans The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.