Citation Nr: 20032286 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 15-31 314A DATE: May 7, 2020 ORDER An effective date of February 8, 1983, and no earlier, for the award of service connection for posttraumatic stress disorder (PTSD), is granted. FINDING OF FACT 1. An original claim for service connection for depression was filed in February 1983 and was denied in an August 1986 rating decision that was not appealed; petitions to reopen the claim for service connection for a psychiatric disorder were submitted in August 1990 and July 1994, but were denied in March 1993 and August 1994, respectively, and were not appealed. 2. A petition to reopen the claim for PTSD was submitted in January 2004 and the petition was granted in May 2008, service connection for PTSD was granted in a July 2012 Board decision, and a grant of service connection was effectuated in a September 2012 rating decision. 3. The RO’s September 2012 award of service connection for PTSD was based on relevant service official service department records, particularly Air Force historical publications associated with the file in August 2008, but published in 1979, that existed and had not been associated with the claims file when VA first decided the claim. CONCLUSION OF LAW The criteria for an effective date from February 8, 1983, and no earlier, for the award of service connection for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1964 to March 1969. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for PTSD, assigning a 50 percent disability rating effective January 29, 2004 and a 30 percent disability rating effective March 17, 2010. Subsequently, by rating decision dated in April 2015, the RO increased the Veteran’s disability rating for PTSD from 50 percent to 70 percent disabling effective January 29, 2004. This case was previously before the Board in December 2018 at which time the Board denied an effective date earlier than January 29, 2004 for the award of service connection for PTSD and continued an initial 70 percent disability rating for the Veteran’s PTSD. Thereafter, the Veteran appealed the December 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2019 Joint Motion for Partial Remand (Joint Motion), the parties moved the Court to vacate the December 2018 decision denying an effective date earlier than January 29, 2004 for the award of service connection for PTSD. The decision to continue an initial 70 percent disability rating for the Veteran’s PTSD was not disturbed. An effective date of February 8, 1983, and no earlier, for the award of service connection for PTSD is granted. Generally, the effective date of an award of disability compensation shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). However, an award based all or in part on relevant official service department records that existed, but were not associated with the claims file when VA first decided the claim, is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156(c)(1). 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. 38 C.F.R. § 3.156(c). Such records include, but are not limited to: 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 § 3.156(c) are met; 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 declassified records that could not have been obtained because the records were classified when VA decided the claim. Id. However, § 3.156(c) 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, 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. The Veteran seeks an effective date earlier than January 29, 2004 for the grant of service connection for PTSD. By way of history, the Veteran filed an original claim for service connection for depression in February 1983 that was denied in an August 1986 rating decision. The claim was not appealed and, as such, the August 1986 decision was final. Subsequent petitions to reopen the claim were submitted in August 1990 and July 1994; however, the petitions were denied in March 1993 and August 1994, respectively, and were not appealed. Most recently, a petition to reopen the claim for PTSD was submitted in January 2004, and service connection for PTSD was granted in a July 2012 Board decision. The current appeal arises from the grant of service connection that was effectuated in a September 2012 rating decision by the agency of original jurisdiction (AOJ). The Veteran contends that an earlier effective date of February 8, 1983 (the date of the initial claim for service connection for a psychiatric disorder) is warranted pursuant to 38 C.F.R. § 3.156(c). Specifically, he asserts that Air Force publication records that were considered by the July 2012 Board decision were relevant official service department records that existed and were not associated with the claims file when VA first decided the claim in August 1986. Notably, in August 2008, VA received official service department records–Air Force publication records–which were considered in the July 2012 Board decision but not associated with the claims file when the Veteran first sought service connection in August 1986. Significantly, the Air Force publication records, which were received in July 2008, were noted in the February 2010 Joint Services Records Research Center (JSRRC) PTSD stressor verification review. The Board, in its July 2012 decision, found two of the Veteran’s stressors confirmed based on the February 2010 JSRRC recommendation that the Veteran’s stressor regarding witnessing a sapper attack in February 1969 at Phu Cat Air Base, be conceded. In the December 2018 decision, the Board found that reconsideration under 38 C.F.R. § 3.156(c)(1) was not warranted because 38 C.F.R. § 3.156(c)(2) precluded reconsideration. Specifically, the Board determined under 38 C.F.R. § 3.156(c)(2) that at the time of his original August 1986 rating decision, the Veteran failed to provide lay statements describing any in-service events, and therefore, the Air Force publication records could not have been obtained prior to or at the time of his August 1986 decision. The October 2019 Joint Motion found that the December 2018 Board decision failed to consider a relevant decision of the Court of Appeals of Veterans Claims (Court) in Mayhue v. Shinseki, 24 Vet. App. 273 (2011). Specifically, in Mayhue the Court determined that the Board’s application of 38 C.F.R. § 3.156(c)(2) was in error given that the information used to verify the appellant’s stressor–his unit number and dates of duty in Vietnam–were always a part of the record. Mayhue, 24 Vet.App. at 280. In this case, a December 1982 claim notes his service with the “37th[Security Police Squadron]” and that his service also included time at the Phu Cat Air Base. As such, the October 2019 Joint Motion found that the Board must reassess whether reconsideration under 38 C.F.R. § 3.156(c)(1) is warranted based on the evidence of record. Upon consideration of the October 2019 Joint Motion and the holding in Mayhue, the Board finds that there was sufficient evidence for VA to identify and verify the Veteran’s claimed stressors prior to January 29, 2004, and 38 C.F.R. § 3.156(c)(2) does not bar application of 38 C.F.R. § 3.156(c)(1) in this case. 38 C.F.R. § 3.156(c)(2). The February 2010 JSRRC recommendation that the Veteran’s stressor regarding witnessing a sapper attack in February 1969 at Phu Cat Air Base was based on service department records which were received by VA in August 2008, after the previous final denials. This service department record existed at the time of the original adjudication in August 1986, as it was published by the Air Force in 1979. Accordingly, the finality of the previous rating decisions is invalidated, and the August 1986 adjudication of the original service connection claim for PTSD is readjudicated in this Board decision. See 38 C.F.R. § 3.156(c). As above, the effective date of an award of disability compensation is the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the effective date is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). The record reflects that the Veteran manifested symptoms of PTSD prior to filing his original claim for service connection for PTSD on February 8, 1983. Further, the Board has not identified any document and/or statement from the Veteran which could reasonably be construed as a claim, either formal or informal, for service connection for PTSD prior to February 8, 1983. Thus, February 8, 1983 is the earliest effective date that can be assigned for service connection for PTSD. 38 C.F.R. § 3.156(c)(3); Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011). The Veteran has had PTSD throughout the course of this claim. The Veteran provided sufficient information for VA to identify and obtain the records prior to the August 1986 rating decision initially denying his claim. The grant of service connection for PTSD is based in part upon the details of stressors contained in these relevant records. Thus, an earlier effective date of February 8, 1983 is warranted for the grant of service connection for PTSD. 38 C.F.R. §§ 3.156(c), 3.400. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, Counsel 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.