Citation Nr: 21004744 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 190506-8441 DATE: January 28, 2021 ORDER An effective date for service connection for posttraumatic stress disorder (PTSD) of January 13, 2012, and no earlier, is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. In June 2005, the Veteran filed his original claim for service connection for PTSD. 2. On January 13, 2012, the Veteran first provided VA with sufficient details of his claimed stressor warranting an attempt at verification. CONCLUSION OF LAW The criteria for an effective date of January 13, 2012 for service connection for PTSD have been met. 38 U.S.C. §§ 5107, 5110(b)(2), 7105; 38 C.F.R. §§ 3.102, 3.104, 3.156(c). REASONS AND BASES FOR FINDINGS AND CONCLUSION In June 2017, the RO granted service connection for PTSD, with an effective date of October 7, 2013. The Veteran appealed issues that included entitlement to an earlier effective date for service connection. In July 2018, the Veteran chose to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program. This decision has been written consistent with the new Appeals Modernization Act (AMA) framework. The Veteran selected the Higher-Level Review lane when he submitted the RAMP election form. Accordingly, in November 2018, the RO readjudicated the claim in a RAMP higher-level review rating decision that considered the evidence of record as of the date VA received the RAMP election form. The RO denied the claim. In May 2019, the Veteran filed a decision review request: Board appeal (notice of disagreement) (VA Form 10182), electing for Direct Review Lane. Under the direct review option, no additional evidence received after the issuance of the appealed rating decision may be considered; rather, the Board review is limited to the evidence of record at the time of the November 30, 2018 rating decision. In October 2019 the Board denied this claim. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In August 2020, while his case was pending at the Court, the VA’s Office of General Counsel and the Veteran’s representative filed a Joint Motion requesting that the Court vacate the Board’s October 2019 decision. That same month, the Court issued an Order vacating the October 2019 Board decision and remanding the case for compliance with a Joint Motion for Remand (JMR). 1. Earlier effective date, service connection, PTSD. The Veteran asserts that an earlier effective date is warranted for service connection for PTSD. The effective date for disability compensation claims based on direct service connection is the day following separation from active service, or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date is the date of the receipt of claim, or the date that the entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). The effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2). The effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). As it was not shown the Veteran engaged in combat, his assertion of a service stressor was not sufficient to establish the occurrence of such event. Rather, his alleged service stressor had to be established by official service records or other credible supporting evidence. Id.; Pentecost v. Principi, 16 Vet. App. 124 (2002). In an unappealed and final decision, dated in June 2006, the RO denied a claim for service connection for PTSD. See 38 U.S.C. § 7105 (c). The Veteran applied to reopen his claim on two occasions, and in unappealed and final decisions, dated in February 2009, and December 2010, the RO determined that new and material evidence had not been received to reopen the claim. Id. With regard to the RO’s December 2010 decision, in January 2011, the Veteran filed a notice of disagreement. A statement of the case, dated in December 2012, shows that the RO reviewed the case de novo and indicated that it denied the claim on the merits. See December 2012 statement of the case. A timely appeal was not received. On October 7, 2013, the Veteran filed to reopen his claim for service connection for PTSD. See Veteran’s statement in support of claim (VA Form 21-4138), received on October 7, 2013. In June 2017, the RO granted service connection for PTSD, with an effective date of October 7, 2013. It was concluded that October 7, 2013, the date of receipt of the Veteran’s application to reopen the claim was the appropriate effective date, because even if the date that the entitlement arose could be found to precede it, the latter of the two dates would still control. 38 C.F.R. § 3.400; Washington v. Gober, 10 Vet. App. 391, 393 (1997). Therefore, the RO has concluded that an earlier effective date for service connection for PTSD is not warranted under 38 C.F.R. § 3.400. In response, the Veteran has primarily argued that an earlier effective date is warranted because there were service records constructively in VA’s possession at the time of the RO’s June 2006 denial of his original claim, such that the correct effective date should be commensurate with the date of receipt of his original claim for service connection, filed in June 2005, under 38 C.F.R. § 3.156 (c). See e.g., Veteran’s representative’s arguments, received in September 2017 (notice of disagreement) and December 2020. Under 38 C.F.R. § 3.156 (c)(1), at any time after VA issues a decision on a claim, if it 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. Such records include service records that are related to a claimed in-service event, injury, or disease. This regulation does not apply to records that VA could not have obtained when it decided the claim because they did not exist or because the claimant failed to provide sufficient information for VA to identify and obtain the records. Id. at (c)(2). 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 denied claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously denied claim. Id. at (c)(3). In October 2019, the Board denied the Veteran’s claim for an effective date prior to October 7, 2013 for service connection for PTSD. The Board determined that the Veteran had failed to furnish the requisite information sufficient to obtain the DoD (Department of Defense) records corroborating his inservice stressor at any time prior to October 2013. The Board stated that reconsideration is not warranted when VA could not have obtained the records when it decided the claim because the claimant failed to provide sufficient information for VA to identify and obtain the records from the Joint Services Research and Records Center. Citing 38 C.F.R. § 3.156 (c)(2). The Board stated the following: In July 2005, the RO explained to the Veteran that the date range provided for each stressful event could not exceed a two-month timeframe. However, the Veteran had only narrowed his original 1982-83 timeframe down to 1982. This was not sufficiently narrow. In a July 2005 notice, the RO explained to the Veteran that it required additional details to verify his claimed stressor. Thereafter, the RO repeatedly explained this to the Veteran on at least six occasions between November 2005 and December 2012. In each case, the Veteran failed to provide additional details warranting another attempt at verification. Although the RO made an erroneous statement that it was unable to conduct further research with the “Marine Corps,” it was clear that VA had considered the Veteran’s service in the Army and the appropriate databases. The Veteran failed to furnish the requisite information sufficient to obtain DoD records corroborating his inservice stressor at any time prior to October 2013. It was not until November 2016 that the Veteran submitted a newspaper article providing precise date of the stressful event, the names and ranks of the killed and injured soldiers, their respective units, and the National Guard training unit which misguided the artillery round. This specific information finally enabled VA to locate the pertinent records that corroborated the Veteran’s own account of the claimed stressful event. The Veteran appealed to the Court, and in August 2020, the VA’s Office of General Counsel and the Veteran’s representative filed a Joint Motion requesting that the Court vacate the Board’s October 2019 decision. That same month, the Court issued an Order vacating the October 2019 Board decision and remanding the case for compliance with a JMR. The JMR shows that the following was agreed to: The record contains what appears to be a screenshot of a stressor verification request that does not appear to contain any of the specifics from the submitted newspaper article that were not previously of record. In Mayhue v. Shinseki, 24 Vet. App. 273, 280 (2011), the Court held that when “the information contained in the claims file at the time of the initial claim was ultimately sufficient to verify a veteran’s stressor, it was VA’s administrative error in failing to verify the stressor with the information it had at the time of the initial claim not the veteran’s subsequent failure to provide additional information sufficient to verify other claimed stressors that prevented VA from verifying his stressor. As the Board did not address the stress or verification request, remand is warranted for the Board to address whether the information required for verification of the Appellant’s stressor was of record prior to the submission of the newspaper article. Upon remand, the Board should provide an adequate statement of reasons or bases for its determination, consistent with 38 C.F.R.§ 3.156(c) and the Court’s holding in Mayhue. In affidavits dated in April and October of 2016, the Veteran asserted that he had witnessed the aftermath of a training accident and that he had arrived on the scene soon after a howitzer round accidentally killed several soldiers. He reported that that he saw dead bodies at the impact area. The Veteran also submitted a newspaper report, dated in August 1983, that described an accident at Ft. Lewis, Washington. The article noted that a howitzer shell fired by a National Guard battery fell short and exploded in a group of soldiers killing two and injuring four. The article stated that the deceased were part of the 2nd Bn, 23d Infantry, 9th Division. The report stated that the shell was fired from a 155-millimeter howitzer by a unit in the National Guard. The screenshot referenced in the JMR notes “PTSD Stressor 1” with the Veteran’s unit as HHC, 2nd Bn, 39th Infantry, at Fort Lewis, with dates of service from December 1981 to January 1984. The Veteran’s military occupation specialty was infantryman. The stress-creating experience was described as: The Veteran reports that while he was stationed at Fort Lewis, Washington, a National Guard soldier shot a howitzer round off course and it landed where soldiers were being disciplined. It killed 13 soldiers. He reported seeing dead bodies everywhere. The Veteran does not know the names of the deceased. The date of the stressor was in June 1983. VA’s Caseflow system indicates that this screenshot was received in March 2017. In May 2017, the DPRIS (Defense Personnel Records Information Retrieval System) stated that they had researched the U.S. Army historical records and coordinated their research with the National Archives and Records Administration. They were not able to locate any unit records pertaining to the 2nd Battalion, 39th Infantry, Fort Lewis, Washington, for the calendar year 1983. They reviewed other historical documents that were available to this office and they were able to document that on August 20, 1983, the 2nd Battalion, 146th Artillery, Washington Army National Guard from Longview, Washington was conducting a weekend live fire exercise. There was an error made in the calculation, which caused the round to impact approximately 1,100 meters to the right of the target in a near proximity to an infantry squad on a road march that caused the deaths of two soldiers and injuries to three soldiers. The Board finds that an effective date of January 13, 2012 is warranted. A statement in support of claim for service connection for PTSD (VA Form 21-0781), received on January 13, 2012, shows that the Veteran indicated that his stressor occurred at Fort Lewis, Washington, in June 1983. See also Veteran’s associated statement, received on January 13, 2012. This is the earliest date upon which the Veteran provided a reasonably specific date/date range for his claimed stressor. The RO accordingly requested verification of this stressor, in which it identified the date of the claimed stressor as June 1983. See March 2017 screenshot. In May 2017, the DRPIS was able to use the information submitted by the RO to verify the claimed stressor, which occurred in August 1983. The Board notes that the August 1983 event was within two months of the June 1983 date first provided by the Veteran on January 13, 2012. Based on the foregoing, an effective date for service connection for PTSD of January 13, 2012 is warranted. To this extent, the claim is granted. An effective date prior to January 13, 2012 is not warranted. In June 2005, the Veteran filed his original claim for service connection for PTSD. In a July 2005 duty-to-assist notice, the RO explained to the Veteran: We need you to narrow the date range as much as possible. The date range you provide for each stressful event cannot exceed a 2-month time frame. This detailed time frame is necessary for us to verify your stressful event. See duty-to-assist letter, dated in July 6, 2005. However, the Veteran’s initial response failed to provide the RO with the requested information. He stated that his stressor occurred in 1982, which he alternatively stated as occurring sometime between 1982 and 1983. See Veteran’s PTSD questionnaire, received in July 2005, and associated statements. Given the lack of detail, VA had no duty to attempt to verify this stressor. See VAOPGCPREC 5-2014 (August 12, 2014); see also RO memorandum, dated in April 2006 (finding that there was insufficient information warranting sending an attempt to verify the claimed stressor to the U.S. Armed Services Center for Unit Records Research (CURR) (now the U.S. Army & Joint Services Records Research Center). The Court has held that it is not an impossible or onerous task for appellants who claim entitlement to service connection for PTSD to supply the names, dates and places of events claimed to support a PTSD stressor. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Therefore, the Veteran’s mere assertion of an inservice stressor was not sufficient to establish the occurrence of such an event, which had to be established by official service records or other credible supporting evidence, and the RO properly denied the claim. Fossie v. West, 12 Vet. App. 1 (1998). Thereafter, a review of the Veteran’s correspondence shows that, despite the RO’s repeated requests for more specific details, the Veteran failed to provide an estimated month, or two-month time frame, for his claimed stressor. See e.g., Veteran’s statements received in December 2005, and February, October, and November of 2006; Veteran’s notice of disagreement, received in July 2006; Veteran’s statements in support of claim (VA Form 21-4138s), received in July 2008, May 2009, and June 2011. Given the foregoing, the service department records later obtained and used to support the grant of service connection for PTSD were not identifiable prior to January 13, 2012, and § 3.156 (c)(1) does not apply. Thus, these arguments do not warrant a grant of service connection prior to January 13, 2012. To this extent, the claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.