Citation Nr: 21003220 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 09-41 762 DATE: January 21, 2021 REMANDED The issue of an effective date earlier than August 15, 2007 for a grant of service connection for posttraumatic stress disorder (PTSD) with major depressive disorder is remanded. REASONS FOR REMAND The Veteran had active service from September 1973 to September 1975. This matter was last before the Board of Veterans’ Appeals (Board) in October 2018. In a May 2020 decision issued by the Court of Appeals for Veterans Claims (Court), the matter was remanded for the Board to consider the Veteran’s claimed entitlement to an earlier effective date for the grant of service connection for a mental disorder. The evidence is not sufficient for the Board to conduct appellate review. The issue of an earlier effective date for a grant of service connection for PTSD with major depressive disorder is remanded. The matter is REMANDED for the following actions: 1, BACKGROUND FOR THE RO ADJUDICATOR: This matter involves the application of 38 C.F.R. § 3.156(c)(3) – specifically, the determination of when the Veteran’s entitlement to service connection for PTSD and/or a major depressive disorder, as linked to military service, “arose.” The Veteran submitted a claim of service connection for a diagnosed major depressive disorder in January 1992. The claim was denied in July 1993 because there was no evidence that the disorder was incurred during, or because of, military service. However, the whole of the Veteran’s service medical treatment and personnel records were not available at the time of the rating decision. In August 2007, the Veteran sought to reopen his claim of service connection for a major depressive disorder and first sought service connection for PTSD. The Veteran’s applications were denied and the Veteran appealed. The matter has been pending before the Board, the Court and the RO several times since August 2007. In January 2016, the RO obtained a copy of a previously unobtained service department record in the form of an enlisted evaluation report (“EER”) signed by Staff Sergeant B.N.C. (“Sergeant C.”), who was the Veteran’s service non-commissioned officer in charge while the Veteran was on active duty. In August 2016, the RO received a statement from Sergeant C. who reported that while stationed in Korea, the Veteran told him that he was “confronted” with a black-market scheme. Sergeant C. related that he advised the Veteran to avoid situations to become involved or in danger. In June 2017, the Veteran submitted medical opinion evidence authored by Patrick B. Mullen, M.D., P.A. Essentially, Dr. Mullen opined that the Veteran had PTSD and depression as a result of experiences during his military assignments to Korea. In October 2017, the RO granted service connection for PTSD with major depressive disorder and episodic psychosis, effective December 7, 2015. After further appellate proceedings, the RO granted an effective date of August 15, 2007 – the date the Veteran submitted his claim of service connection for PTSD. As a general matter, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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 the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The Veteran argues that the effective date of his service connection should be the date of receipt of his original claim – January 1992. In support, he cites 38 C.F.R. § 3.156 (c)(1), which provides in part that 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)(1). Here, VA has already reconsidered the claim and granted the benefit sought, as evidenced by the RO’s analysis of the Statement of Sergeant C., his identification as the Veteran’s military supervisor and the medical opinion of Dr. Mullen. However, an award made based “all or in part on the records identified by paragraph (c)(1)... 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)(3). The adjudicator is advised that the term “date entitlement arose” is not defined in the current statute or regulation. The Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a “facts found” basis. See 38 U.S.C. § 5110 (a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (in the context of a service connection claim, the Board must determine when the service-connected disability manifested itself under all of the facts found). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. The adjudicator is also advised that “[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition.” DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). However, “it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). The matter is therefore being remanded to the RO for a determination as to when the Veteran’s entitlement to service connection for a mental disorder “arose,” and if earlier than the currently assigned effective date, to assign appropriate disability ratings for the period of entitlement. The remand directives follow. 2. REMAND DIRECTIVES: a. Obtain a retrospective medical opinion by a physician qualified in the diagnoses of mental disorders to determine whether, and if so when, the Veteran had a major depressive disorder and/or PTSD caused by military service, earlier than the currently-assigned date of August 15, 2007. b. Although the examiner must review the record, his/her attention is called to the following: *As noted, the Veteran had active service from September 1973 to September 1975, including an assignment to Korea. *In May 1985, the Veteran was admitted to “Morris Village Alcohol and Drug Addiction Treatment Center” in Columbia, South Carolina and treated for approximately one month for alcohol and drug abuse. It was noted that the Veteran had started injecting three to four grams a week of heroin in 1974 (i.e., in service); that since 1978 he was injecting a mix of heroin and cocaine – the last time being 13 days before admission and that he would use alcohol, beer, wine and liquor when other drugs were not available. He was diagnosed with continuous opiod dependence, continuous cocaine abuse, and continuous alcohol dependence. There is no mention of the Veteran’s military service in the record of his treatment from May to June 1985. *The Veteran was hospitalized for approximately two weeks in late 1991 and treated for depression and suicidal ideation. He reported a two-month history of depression. There is no mention of the Veteran’s military service in these reports, other than a December 1991 note indicating that the Veteran was “in Army 2 yrs – honorable discharge” without further notation of any military incidents. A January 1, 1992 “Individual Treatment Plan” indicated the Veteran had been depressed for four to five months with feelings of hopelessness, depressed mood, insomnia, crying spells, withdrawal, suicidal thoughts, loss of pleasure in all activities, fatigue, and excess guilt. *The Veteran filed a claim of service connection for major depressive disorder in January 1992. *A February 1992 VA general medical examination noted that the Veteran had been hospitalized twice because of “manic depressive disease.” The examiner found a diagnosis of a “history of manic-depressive disease needing treatment.” There was no reference to the Veteran’s military service, other than a notation that he was a veteran. *In March 1992, the Veteran underwent a VA mental disorders examination. The Veteran advised the examiner that while posted to Korea on active duty 17 years earlier, he became depressed because he was homesick. The Veteran told the examiner that he consulted a chaplain “a couple of times,” and he “almost lost it over there.” He reported that he and his wife had a concrete finishing business for four and one-half years before the business went bankrupt. The Veteran told the examiner that he had been depressed for a “long time,” and that he was then having difficulty concentrating and was becoming easily irritated. The Veteran was also noted to have been hospitalized after a suicide attempt, about three months before the examination. The Veteran reported that the onset of his symptoms was “about five or six months” previously or, late 1991. He told the examiner that he had attempted suicide; that someone had broken into his home and his mother had sustained a “heart attack.” The Veteran told the examiner that about six months previously, he and his wife were having problems because he had a child “outside of the marriage” and his wife would not permit him to see the child. He added that both of his parents were alcoholics; that his mother “probably had the same sort of affective disorder as he” but never received any treatment, and that he had been unemployed for the previous five or six months. He also told the examiner that he spent his whole life taking care of family members, including his sister who became pregnant and his brother whom the Veteran supported through school and purchasing clothes although this support meant that the Veteran did not have enough money to complete school himself. He also stated that “all through [his] childhood, [he] wanted a strong family connection,” and that he then felt that his “own family is just as bad as the one [he] came from.” The March 1992 VA examiner diagnosed a major depressive disorder. However, other than noting the Veteran’s report of being homesick while on active duty approximately 20 years earlier, the examiner noted no reference to the Veteran’s military service as a causal factor in his disorder. *In September 1992, the Veteran was hospitalized at a non-VA facility and treated for suicidal ideation and polysubstance abuse. There was no mention of the Veteran’s military service in the report. *A separate September 1992 psychological evaluation report prepared by C. Williams, M.S. indicates that the Veteran had been admitted for depression and auditory hallucinations. The diagnostic impression was early onset primary type dysthymia and continued rule out of factitious disorder. *In a May 1993 letter, the Veteran’s spouse related that she and the Veteran had been married for six years, or since 1987 – about 12 years after the Veteran was discharged from active service. Although the Veteran’s spouse stated that the Veteran had a “nervous breakdown” in service which caused him to be discharged earlier than his obligated tour ending in September 1975, the Veteran’s report of separation in fact indicates that he served his complete three years of obligated service. *In a July 1993 rating decision, VA denied the claim of service connection for a major depressive disorder. It noted that the Veteran’s spouse’s assertion of the Veteran being discharged early was not correct, and denied the claim because there was no evidence the Veteran had a mental disorder that was caused by or during service. *In September 1994, the Veteran was hospitalized for four days and treated for major depression with psychotic features, alcohol abuse and a mixed personality disorder. There was no mention of the Veteran’s military service in the report. *In March 1995, the Veteran underwent a VA mental disorders examination. The examiner noted that the Veteran had a long history of auditory hallucinations, which had been intensifying since October 1994. The examiner noted the Veteran had “at least a five-year” mental disorder history, and diagnosed chronic paranoid schizophrenia. The examiner noted that the Veteran had auditory hallucinations which the Veteran reported were worsening over the previous five years beginning with his first mental hospitalization in 1990 by the Veteran’s report. There was no mention of the Veteran’s military service or any military-related events or in-service mental symptoms or treatments. The examiner diagnosed chronic paranoid schizophrenia. *In August 2007, the Veteran again sought service connection for a major depressive disorder and first asserted that he had PTSD as a result of military service. The Veteran then reported that while posted to Korea, he witnessed Korean nationals “killing some Americans” and other Koreans. He told the examiner that he abused substances, which continued when he returned to a stateside assignment and that his military chain-of-command removed the door to his barracks room. *In an August 2007 statement, the Veteran reported that while posted to Fort Bliss, Texas after his Korean assignment, he was involved in a driving while intoxicated incident. He again stated that the door to barracks room was removed. He reported in a statement dated the following month that he had been reduced in rank – the latter is corroborated by the record. *VA treatment records dated from November 2008 reflect a “negative” PTSD screening in June 2008. *In August 2008, the RO received several service personnel records not previously in VA’s possession. These generally included records of military assignments, personnel and pay actions. His military records also indicate that he was reduced in rank from Specialist Four (E-4) to Private First Class (E-3). Also included in the records obtained in August 2008 was a two-page “Enlisted Efficiency Report” (“EER”) signed by Staff Sergeant B.N.C.Jr., (“Sergeant C.”) who was the Veteran’s non-commissioned officer in charge in Korea. In the report, Sergeant C assessed the Veteran as an average performer. *In August 2016, the RO received a statement from Sergeant C., who recalled the Veteran as an “outstanding” soldier, and the Veteran informed him that he was “confronted” with a black-market scheme. Sergeant C. related he advised the Veteran to avoid situations where he would place himself in danger. Sergeant C. also alleged that individuals in his chain-of-command were also involved in black marketing and he (Sergeant C.) held this information because his own life would have been in danger. *In June 2017, the RO received a Disability Benefits Questionnaire (DBQ) authored by P.B. Mullen, M.D., who reported that as of May 2, 2017, the Veteran had a “formal” diagnosis of PTSD, major depression, and recurrent psychosis. Dr. Mullen indicated that the Veteran’s PTSD symptoms “long antedated this.” *In a separate May 2, 2017 DBQ, Dr. Mullen reported that the Veteran’s disorders all came from “his Korean War experiences.” (However, the examiner should note that the Veteran did not serve in the “Korean War,” but was instead posted to Korea in the early 1970’s). Dr. Mullen also stated his belief that the Veteran was “entirely credible.” *Dr. Mullen also provided another separate document, detailing the Veteran’s accounts of in-service stressors and diagnoses. The Veteran alleged that these events were (1) he was “compelled” to participate in black market activity by fellow African-American soldiers and that these soldiers would also compel the Veteran to fight white soldiers or risk himself being beaten; (2) he witnessed a Korean national beat and kill another Korean national about black market activity; (3) the Veteran was attacked by a Korean woman about black market activity and he was beaten with sticks until other American soldiers came to rescue him, and (3) when the Veteran returned from Korea and was assigned to Fort Bliss, Texas, he was involved in a motor vehicle accident, as detailed in the Veteran’s August 2007 statement. *In October 2017, the RO granted service connection for the mental disorders and assigned a 100 percent disability evaluation. In September 2019, and after receipt of the Veteran’s disagreement with the originally-assigned effective date, the RO amended the effective date of the grant of service connection to August 15, 2007. c. The examiner is advised that he or she must review the evidence and provide a fully-explained retrospective MEDICAL opinion as to when the Veteran’s depressive disorder and/or PTSD manifested as having a causal connection to his military service – i.e. the date the Veteran’s entitlement to service connection for a mental disorder “arose.” In forming this opinion, the examiner is advised that he/she must discuss the reasons underlying his/her findings, including whether the Veteran is credible in his account. d. The RO and/or the examiner may conduct any other mental disorders examinations, interviews, or clinical studies if necessary to obtain a fully-explained and responsive opinion. (Continued on the next page)   e. The examiner is also advised that the date of diagnosis of either or both of these disorders is relevant but not determinative of this question. The date of submission of evidence is also not determinative. Following receipt of this opinion and any other development completed, the RO should ensure that the physician’s opinion is responsive to the inquiry. Conduct all other appropriate appellate proceedings as necessary. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.