Citation Nr: 21065099 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 17-19 516 DATE: October 25, 2021 ORDER Entitlement to an effective date of February 2, 2004, for the award of service connection for posttraumatic stress disorder (PTSD), is granted. FINDINGS OF FACT 1. On February 2, 2004, VA received the Veteran's formal claim for service connection for a psychiatric disability, which remained undeveloped when VA received the Veteran's claim for service connection for PTSD, on November 12, 2005. 2. The Regional Office (RO) granted entitlement to service connection for PTSD in a February 2011 rating decision based on application of liberalizing regulatory changes, effective July 13, 2010. 3. The evidence of record demonstrates that entitlement to service connection for PTSD could be granted in the alternative, without application of the liberalizing law. CONCLUSION OF LAW The criteria for an effective date of February 2, 2004, and no earlier, for the grant of service connection for PTSD, have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably in the United States Army from September 1968 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In May 2021, the Veteran testified before the undersigned at a virtual conference hearing. A transcript of the hearing is associated with the claims file. Entitlement to an effective date of February 2, 2004, for the award of service connection for PTSD, is granted. The Veteran's PTSD award has been made effective March 1, 2010, which the RO interpreted to be the date the Veteran filed a claim to reopen his service-connection claim. The Veteran essentially contends that he is entitled to an earlier effective date because his service-connection claim for PTSD had been pending since the date he original filed in November 2005. See May 2021 Board Hearing Transcript. For the reasons discussed below, the Board finds that the Veteran's claim has actually been pending since February 2, 2004. See VA Form 21-526 received on February 2, 2004, requesting entitlement to service connection for depression/anxiety. The effective date of an evaluation and grant of compensation, or dependency and indemnity 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. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For claims prior to March 24, 2015, a "claim" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(b). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Where compensation is awarded or increased pursuant to a liberalizing law or VA issue, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. See 38 C.F.R. § 3.114(a). By way of background, the Veteran filed a service-connection claim for depression/anxiety, which VA received on February 2, 2004. It does not appear the RO recognized this claim, as no action was taken to develop or adjudicate the entitlement to service connection for any psychiatric disability until after the Veteran filed a service-connection claim for PTSD in November 2005. In an August 2009 rating decision, the RO denied entitlement ot service connection for PTSD, based on a finding that the evidence included no clinical diagnosis. Crucially, the Veteran submitted a Statement in Support of Claim for Service Connection for PTSD, VA Form 21-0781, in September 2009, clearly identifying and disagreeing with the August 2009 RO rating decision, on the basis that VA did not adequately develop the Veteran's claim and associate records from his VA contract counselor, who was treating the Veteran for PTSD and who had advised the Veteran that he had submitted regular reports to VA, regarding his counseling sessions with the Veteran. The Board finds that such a communication is indeed a valid notice of disagreement with the August 2009 rating decision, based on the regulations effective at the time, which did not require submission of a standardized Notice of Disagreement form. Accordingly, the Veteran's original service-connection claim remained pending at that time. The RO readjudicated entitlement to service-connection for PTSD (claimed as bipolar disorder, depression and anxiety) in an October 2009 rating decision, denying it again based on a finding that there was no diagnosis, and no confirmed combat stressor. On March 1, 2010, the Veteran submitted a letter from Dr. C.L.K. noting a diagnosis of PTSD, and an indication that such is related to service. The RO interpreted the Veteran's filing a new claim to reopen. In a February 2011 rating decision, the RO ultimately granted entitlement to service connection for PTSD, and made the effective date March 1, 2010. The Veteran timely disagreed with the assigned effective date, and perfected this appeal. Based on the procedural history above, the Board finds that the Veteran's date of claim was not actually March 1, 2010, but actually February 2, 2004, which is the date the VA received the Veteran's service-connection claim for depression/anxiety. His claim for a psychiatric disorder remained unadjudicated until August 2009, and the Veteran timely disagreed with the August 2009 determination. The appeal remained pending until the RO granted entitlement to service connection in the February 2011 rating decision. Having established the date of claim, the Board now turns to the February 2011 rating decision. Importantly, when granting entitlement to service-connection for PTSD in February 2011, the RO did so based on July 13, 2010 amendments to VA's regulations. Specifically, VA amended its regulations governing service connection for PTSD as they pertained to the evidentiary standard for establishing the required in-service stressor. The amended regulations allowed credible lay testimony alone to establish the occurrence of an in-service stressor based on fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f)(3). The RO made clear that the February 2011 grant of service connection for the Veteran's PTSD was based on this relaxed standard. The United States Court of Appeals for the Federal Circuit has recently held in a precedential decision that the enactment of 38 C.F.R. § 3.304(f)(3)which, in claims for service connection for PTSD allows a claimed in-service stressor related to the Veteran's fear of hostile military or terrorist activity to be established by the Veteran's lay statements alonequalifies as a liberalizing law that triggers the effective date provisions of 38 C.F.R. § 3.114(a). Ortiz v. McDonough, 6 F.4th 1267 (Fed. Cir. 2021), As noted above, under 38 C.F.R. § 3.114(a), where compensation is awarded or increased pursuant to a liberalizing law, the effective date of the award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. Accordingly, because the RO awarded service connection for PTSD utilizing the amended regulation, and because the amended regulation is in fact a liberalizing law, 38 C.F.R. § 3.114(a) would legally preclude the assignment of an effective date for the award of service connection for PTSD based on that law prior ot July 13, 2010. At this point, given the Veteran's service-connection claim pre-dated these 2010 amendments, the key question at issue in this case is whether the Veteran's February 2004 claim could have been granted in the alternative without utilizing the liberalizing law. If so, the effective date can be placed at the date of claim or the date entitlement rose, whichever is later, under the general effective date regulations in 38 C.F.R. § 3.400, and the provisions of 38 C.F.R. § 3.114(a) would not apply. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and a stressor event during active service; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Concerning a diagnosis at the time the Veteran initially filed his claim in February 2004, the Board recognizes the October 2010 examination report findings of medical history: "Treatment for this condition was begun about seven years ago by Dr. E.... [and] he has also seen Dr. K. on a monthly basis for psychotherapy for PTSD." Private treatment records that were added to the record in May 2009, dated in 2005, show reference ot the Veteran's previous PTSD disorder. See a 2005 (specific date unclear) private psychiatry note from Dr. E. Regarding in-service stressors, while the RO has already conceded the Veteran's PTSD is related to fear for his life in Vietnam, a military personnel record from November 1971 clearly identifies the Veteran by name and states he "has served honorably and meritoriously in the Republic of Vietnam and that he has performed "under actual fire and under combat conditions in an exceptional manner..." The Board finds this citation, coupled with other personnel records showing participation in several campaigns, to include the "Tet 69/Counteroffensive," to be sufficient corroboration that the Veteran experienced actual combat during service. Thus, the evidence at the time of the October 2011 rating decision granting the Veteran's PTSD claim included actual confirmation of the Veteran's stressor through his military personnel records, a confirmed diagnosis of PTSD dating shortly after his 2004 claim, and an opinion by the October 2010 examiner linking his disability to his combat experience. Thus, the Veteran's claim need not have been granted pursuant the Veteran's statements of experiencing "fear of hostile military or terrorist activity," in accordance with the amended 38 C.F.R. § 3.304(f), as the evidence of record at the time of the February 2011 rating decision established that the Veteran engaged in combat with the enemy, and that PTSD was related to such corroborated stressors. Based on the above, the Board finds that an effective date of February 2, 2004, is warranted for service connection for PTSD. As discussed above, the Veteran's service-connection claim was pending from February 2, 2004, until it was granted by the RO in February 2011, at which point an effective date for the award was assigned by the RO and subsequently challenged by the Veteran. The evidence shows the presence of a PTSD disability as early as 2003 (based on the October 2010 examination report's statement of history). (Continued on Next Page) Because entitlement to service connection for PTSD could be granted without utilization of the July 2010 liberalizing law, and because the Veteran's service-connection claim was pending since February 2004, entitlement to the assignment of a February 2, 2004 effective date for the award of service connection for PTSD is granted. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Hennessy, Associate 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.