Citation Nr: 20004124 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 10-11 629 DATE: January 16, 2020 ORDER An effective date of April 14, 1972 for the award of service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for a “nervous condition”—which reasonably encompassed a claim for PTSD—that was received by VA on April 14, 1972. 2. Service connection for a nervous condition was denied in an October 1972 rating decision on the basis that the service treatment records and a VA examination report did not show a nervous condition. 3. On May 3, 1995, the Veteran filed a claim for nonservice-connected pension for “nervousness, affected memory, confused.” 4. On September 24, 1996, the Veteran filed a claim for service connection for “nervous condition” due to “fatigue of war: PTSD” [sic]. 5. The Veteran’s service personnel records were received by VA in February 2000. 6. A December 2002 rating decision awarded service connection for PTSD effective September 24, 1996, the date of the Veteran’s claim for service connection; the award was based in part on the newly-obtained service personnel records supporting the occurrence of an in-service stressor. 7. A December 2006 rating decision found clear and unmistakable error in the December 2002 rating decision with regard to the effective date of service connection for PTSD, and assigned an earlier effective date of May 3, 1995, the date of the Veteran’s claim for pension benefits, which was construed as also a claim for service connection. 8. The Veteran’s service-connected psychiatric disorder has been present since at least April 14, 1972, the date of his original claim for a nervous condition. CONCLUSION OF LAW The criteria for an effective date of April 14, 1972 for the award of service connection for PTSD are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from March 1969 to October 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in January 2014, April 2016, and February 2018 for further development.   Effective Date of Service Connection Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In claims for direct service connection, if the claim is received within one year after separation from active service, the effective date of the award is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. With respect to the date of claim, a specific claim in the form prescribed by the VA Secretary must be filed in order for benefits to be paid to any individual under VA law. 38 U.S.C. §§ 501, 5101; 38 C.F.R. § 3.151. Effective prior to March 2015, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a) (2014); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). 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. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted).   Effective Date of Service Connection for PTSD As found in the Board’s prior remands, the period on appeal relates back to the Veteran’s original service connection claim for PTSD, which was filed in April 1972. See, e.g., January 2014 Board Remand. The Board refers to its prior remands for a more detailed discussion of this finding. The Board will briefly summarize, as follows. The Veteran originally filed a formal application for service connection for a “nervous condition” on April 14, 1972. The claim was denied in an October 1972 rating decision, which he did not appeal. The Veteran filed a claim for nonservice-connected pension benefits on May 3, 1995 for disabilities that included psychiatric symptoms such as nervousness, impaired memory, and confusion. That claim was denied in a September 1995 rating decision. In September 1996, the Veteran filed a claim for service connection for PTSD, which was granted in a December 2002 rating decision. The grant was based in part on the receipt of service personnel records in February 2000 which supported the occurrence of an in-service stressor. The December 2002 rating decision assigned an effective date of September 1996, the date of the Veteran’s claim for service connection. The Veteran did not appeal that decision. A December 2006 rating decision found clear and unmistakable error (CUE) in the December 2002 rating decision with respect to its assignment of September 1996 as the effective date of service connection for PTSD. The December 2006 decision assigned an effective date of May 3, 1995, the date of the Veteran’s claim for nonservice-connected pension, construing that claim as also a claim for service-connected compensation for PTSD. See 38 C.F.R. § 3.151(a). In its prior remands, the Board determined that the RO’s finding of CUE in the December 2002 rating decision rendered that decision nonfinal. The Board further found that VA’s receipt of the Veteran’s service personnel records in February 2000 warranted reconsideration of the claim for PTSD under 38 C.F.R. § 3.156(c), and that since the award of service connection for PTSD was based in part on those records, the proper effective date of service connection is the date entitlement arose or the date VA received the previously decided claim, whichever is later. See 38 C.F.R. § 3.156(c)(3). As the previously decided claim was the application submitted in April 1972, and as the record does not show that a prior claim for a psychiatric disorder was filed by the Veteran, the Board has found that April 14, 1972 is the date of claim for purposes of applying the effective date provisions of section 3.156(c). See January 2014 Board Remand (the date stated therein is April 18, 1972, but the application was actually received on April 14, 1972). The issue, then, as previously stated by the Board, is the date entitlement arose. Under sections 3.156(c) and 3.400 of the regulations, the effective date for the award of service connection for PTSD can be no earlier than the date entitlement arose. That requires a determination as to whether the Veteran’s service-connected PTSD was present at the time he submitted the April 1972 claim, or at least some time between that date and the current May 3, 1995 effective date of service connection, such that an earlier effective date may be assigned. The Board’s prior remands have been for the purpose of developing for evidence, including medical records and VA medical opinions, that would aid in that determination. For the following reasons, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s PTSD was present when he filed the April 1972 claim, and therefore an effective date of April 14, 1972 for the award of service connection is warranted. When the Veteran filed his April 1972 claim, VA did not afford him a psychiatric examination to determine whether he had a mental health disorder related to active service. A general VA examination was performed in August 1972, but that examination was arranged only to address claims for a back condition and a genitourinary condition, as noted in the report and as shown in VA’s June 1972 request for a physical examination (VA 21-2507a). Moreover, the examiner was not a mental health professional, and the report does not reflect findings regarding the Veteran’s mental status. Thus, although the examiner wrote “normal” in the section addressing the nervous system, including psychiatric functioning, the Board finds that this statement is not probative as to whether the Veteran had a psychiatric disorder at the time. Unfortunately, there are no medical records in the file between 1972 and the 1990’s, despite repeated efforts to obtain records for this period. Nevertheless, the Veteran’s claim for a nervous condition itself, which was filed not long after his period of service, is probative evidence that his PTSD was present at the time, given the significance of the stressors he experienced serving in combat conditions in Vietnam and at the Cambodia border (as detailed in a July 2002 statement (VA 21-0781) and an October 2002 administrative decision), and in light of subsequent medical findings, as specified in the following paragraphs. An October 1995 VA treatment record reflects that the Veteran was referred to mental hygiene for severe episodes of insomnia and anxiety. The October 1995 mental health consultation record reflects that he reported being anxious, having insomnia, loss of interest, and loss of energy, among other symptoms. On examination, he had an anxious mood and affect. The Veteran was hospitalized at VA for about a month in January 1996 for depression and alcohol detoxification. The hospitalization summary notes symptoms including anxiety, insomnia, anhedonia, sadness, crying spells, and irritability. A December 1997 private treatment record is difficult to read, but seems to state that the Veteran reported crying and shaking while serving in Cambodia, and that he had episodes of multiple somatic complaints since Cambodia, and other symptoms such as insomnia. An April 1999 private psychiatric treatment record reflects that the Veteran reported he used to be “functional” until 1993, when he was unemployed. He reported symptoms such as insomnia, somatic complaints, irritability, anxiety, and frequent flashbacks. He was diagnosed with major depression and PTSD. This appears to be the first diagnosis of PTSD in the file. The July 2016 VA examination report reflects that the Veteran stated that when he separated from service, in October 1970, he had mental health issues which he characterized as being extremely anxious, nervous, sleeping on the job, irritability, and yelling. He stated that he was asked to leave his job by 1972. He further reported that around 1974 he had a suicide attempt and was hospitalized. He stated that thereafter he worked until around 1990 or 1991, when he stopped working due to a shoulder injury. After that, his mental health deteriorated, and he was hospitalized in 1996 or 1997 for almost a month. He noted that prior to the hospitalization he was having severe flashbacks and nightmares, was irritable, was not sleeping, was severely depressed, and was having panic attacks. The July 2016 examiner, a psychiatrist, opined that it is reasonable to conclude that the Veteran’s PTSD first manifested between 1991 and 1992 based on the fact that records indicated that he stopped working around that time. The psychiatrist who provided the July 2016 opinion was asked to address a diagnosis of schizophrenia contained in a March 1995 private treatment record. In an April 2017 addendum, the examiner stated that the Veteran’s medical records did not support a diagnosis of schizophrenia. The examiner stated that the Veteran’s PTSD encompassed symptoms of depression and anxiety, and that these symptoms would not require separate diagnoses. The diagnosis of PTSD included symptoms of avoidance, intrusive thoughts, depression, panic episodes, general anxiety, nightmares, sleep disturbance, hypervigilance, irritability, increased startle response, and poor concentration. In a May 2018 addendum, the examiner who provided the prior opinions acknowledged the diagnoses of schizophrenia, but noted that these diagnoses were not rendered by mental health professionals, but rather by a family medicine doctor and a neurologist. The examiner stated that the Veteran’s mental health records did not show or support such a diagnosis. In this regard, the examiner stated that the Veteran did not have cardinal symptoms of such a disorder such as hallucinations or delusional thinking. The examiner also stated that the Veteran’s PTSD first manifested in April 1999, referencing the April 1999 private treatment record discussed above in which PTSD was first diagnosed. Significantly, the examiner stated that the Veteran’s mood and anxiety conditions were first seen to manifest in 1972, based on the Veteran’s 1972 claim, and that these were first diagnosed in July 1995. The examiner noted that the Veteran was later hospitalized for these conditions in 1996. The VA examiner’s opinions that the Veteran’s PTSD first manifested in 1991 or 1991, when he stopped working, or in April 1999, when it was first shown to be diagnosed, are not probative. The sole fact that the Veteran stopped working around 1991 or 1992, or that he had more severe symptoms at that time, does not mean that his PTSD first manifested then. Moreover, the fact that it was first diagnosed in April 1999 does not mean that it first manifested at that time. Indeed, the RO already assigned an effective date of May 3, 1995, prior to the 1999 diagnosis of PTSD. In this regard, VA law recognizes that the diagnosis of a disease is not required to establish its existence or onset date, and that its presence may be shown well before the actual diagnosis by competent evidence of signs and symptoms of the disease. See Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)) (holding that “symptoms, not treatment, are the essence of any evidence of continuity of symptomatology"). Thus, for example, 38 C.F.R. § 3.303(d) provides that service connection may be granted for any disease diagnosed after discharge when the evidence shows that it was incurred in service. The Board finds the examiner’s statement that the Veteran’s mood and anxiety conditions were first seen to manifest in 1972 based on his claim for a nervous condition at that time, and that these symptoms were first diagnosed in July 1995, is probative. It is consistent with the Veteran’s competent and credible statements, as reflected in the July 2016 VA examination report, describing psychiatric symptoms that began shortly after he separated from service in 1970. There is no probative evidence of record that the Veteran did not have PTSD when he submitted the April 1972 claim, and probative evidence indicating that he did have a mental health condition at the time which was later diagnosed as PTSD. As explained above, the August 1972 VA examination report is not probative on that issue, and the recent medical opinions by the VA psychiatrist that the Veteran’s PTSD first manifested in 1991, 1992, or 1999 are also not probative. Significantly, in the April 1999 private treatment record in which the Veteran was first diagnosed with PTSD by a psychiatrist, he reported symptoms such as insomnia, somatic complaints, irritability, anxiety, and frequent flashbacks. Apart from the frequent flashbacks, these symptoms are similar to those he had previously described, and also similar to the symptoms he related experiencing shortly after he separated from service in 1970, as reflected in the July 2016 VA examination report. Indeed, as explained by the psychiatrist in the April 2017 addendum, the Veteran’s symptoms of anxiety and depression were encompassed by his PTSD, and did not represent separate diagnoses. There is thus a strong indication that the “mood and anxiety conditions” that manifested in April 1972, as found by the VA examiner, were symptoms of then-undiagnosed PTSD. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for a nervous condition, later diagnosed as PTSD, were satisfied at the time of his April 1972 claim. See 38 C.F.R. § 3.102. Therefore, as the date of entitlement coincides with the date of claim, an effective date of April 14, 1972 is established for the award of service connection for PTSD, as the claim was filed more than a year after the Veteran’s separation from service. See 38 C.F.R. §§ 3.156(c), 3.400. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.