Citation Nr: 20044191 Decision Date: 07/01/20 Archive Date: 07/01/20 DOCKET NO. 09-00 230A DATE: July 1, 2020 ORDER Entitlement to an effective date of November 1, 1974, for the grant of service connection for an acquired psychiatric disability is granted. REMANDED Assignment of a Diagnostic Code and disability evaluation for an acquired psychiatric disability for the period from November 1, 1974 to April 10, 1980 is remanded. FINDINGS OF FACT 1. On November 1, 1974, the Veteran filed a claim for disability compensation for a “Nervous Condition” that was denied by a July 1975 rating decision. 2. An April 2007 rating decision granted service connection and a 100 percent rating for posttraumatic stress disorder (PTSD), effective date April 26, 2006. 3. An April 2017 Board decision reconsidered the July 1975 rating decision and assigned an effective date of April 11, 1980 for the grant of service connection for the Veteran’s PTSD. 4. A February 2020 Memorandum Decision by the United States Court of Appeals for Veterans Claims (Court) vacated and remanded the Board's April 2017 decision; in doing so, the Court noted that the Board’s decision found that the psychiatric symptoms reflected in the Veteran's service treatment records were due to his PTSD and had existed continuously since service; the Court stated that the psychiatric symptoms for the period prior to 1980 are service-connected. CONCLUSION OF LAW The criteria for an effective date of November 1, 1974 for the grant of service connection for an acquired psychiatric disability have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156 (c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1969 to May 1972. This case comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2007 decision that granted service connection and assigned a 100 percent rating for PTSD. The effective date was April 26, 2006, the date of the Veteran’s reopened claim for service connection for PTSD. The Veteran appealed for an earlier effective date. The Board denied an effective date earlier than April 26, 2006, in a March 2011 decision. The Veteran appealed this decision to the Court. In April 2013, the Court issued a Memorandum Decision vacating the matter and remanding the claim to the Board. In an October 2013 decision, the Board assigned an effective date of November 7, 2005, for the grant of service connection for PTSD. In doing so, the Board found that the April 2007 rating decision had relied on newly received service personnel records when granting the Veteran’s claim. Thus, the Board’s decision reconsidered the original rating decision issued in July 1975. A July 2015 Court Memorandum Decision vacated the Board’s October 2013 decision and remanded the matter. The Court vacated the entire Board decision, not merely that part that denied an effective date earlier than November 7, 2005. However, in November 2013 the RO had effectuated the 2005 effective date. In an April 2017 decision, the Board again reconsidered the original July 1975 rating decision and assigned an effective date of April 11, 1980 for the grant of service connection for PTSD. The Board found that the evidence showed that the Veteran had met all eligibility criteria for service connection for PTSD from April 11, 1980, the date that a Diagnostic Code for PTSD was added. Thus, that date was the earliest that the Veteran could be entitled to service connection for PTSD. The February 2020 Court Memorandum Decision vacated the Board’s April 2017 decision and remanded the matter for the Board. The Court pointed out that the Board has a duty to consider all potentially applicable legal provisions in a given case. Before PTSD was added to the rating schedule, it was treated as an anxiety disorder and rated by analogy. Unfortunately, the Board neither assigned an analogous Diagnostic Code nor determined the appropriate compensation level for the Veteran's service-connected psychiatric symptoms prior to1980. The Court specifically noted that in the decision on appeal, the Board found that “the psychiatric symptoms reflected in the veteran's service treatment records were due to his [service-connected] PTSD, and that these psychiatric symptoms have existed continuously since [service].” R. at 12. So, as far as this case is concerned, the psychiatric symptoms for the period prior to 1980 are service-connected. Memorandum Decision at p. 6. The Court specifically noted that it could not disturb the favorable factual finding made by the Board finding that the psychiatric symptoms during service were due to the Veteran’s PTSD and the symptoms existed continuously since service. See Medrano v. Nicholson, 21 Vet. App. 165 (2007). As a result, service connection was established for the Veteran’s psychiatric symptoms for the period prior to April 1980. The “only thing left for the Board to do now is assign an analogous DC and determine the compensation level.” Memorandum Decision at pp. 5-6. The Court ordered that on remand the Board finish its analysis of the claim by rating the Veteran's service-connected psychiatric symptoms under an analogous Diagnostic Code for the period prior to the 1980 amendment adding PTSD to the rating schedule. In light of the Court’s decision, the Board has recharacterized the issue as entitlement to an earlier effective date for the grant of service connection for an acquired psychiatric disability. The Veteran contends that the effective date for the grant of service connection for an acquired psychiatric disability should be November 1, 1974, the date of his original claim for service connection for a nervous condition. The relevant law provides that the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R.§ 3.400 (b)(2)(i). In light of the Court’s February 2020 Memorandum Decision and the evidence that the symptoms due to the Veteran's service-connected PTSD have existed since separation, the Board finds that an effective date of November 1, 1974 is warranted for the grant of service connection for an acquired psychiatric disability, as this date is the day of receipt of the Veteran’s claim for service connection for a nervous condition. 38 C.F.R.§ 3.400 (b)(2)(i). REASONS FOR REMAND In the February 2020 Memorandum Decision, the Court ordered that on remand the Board finish its analysis of the claim by rating the Veteran’s service-connected psychiatric symptoms under an analogous Diagnostic Code for the period prior to the 1980 amendment adding PTSD to the rating schedule. The Board’s jurisdiction does not permit it to make such determinations in the first instance. The Veteran must be afforded de novo consideration of these matters by the RO. The matter is REMANDED for the following action: After implementing the Board’s decision above and awarding the Veteran an effective date of November 1, 1974 for the grant of service connection for an acquired psychiatric disability, assign a Diagnostic Code and an initial disability rating for the period from November 1, 1974 to April 10, 1980. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.