Citation Nr: 21066676 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 09-29 146 DATE: November 1, 2021 ORDER Entitlement to an earlier effective date of June 1, 2006, but no earlier, for service connection for PTSD is granted, subject to the laws governing the payment of monetary benefits. REMANDED Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include major depressive disorder, is remanded. Entitlement to an initial rating greater than 10 percent prior to March 24, 2014, and greater than 30 percent thereafter, for PTSD is remanded. Entitlement to an earlier effective date than March 28, 2014, for a 30 percent rating for PTSD is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT The evidence of record shows that the Veteran's PTSD symptoms, which manifested as chronic sleep impairment, arose at the time of the June 1, 2006 claim for service connection for insomnia. CONCLUSIONS OF LAW The criteria for an effective date of June 1, 2006, but no earlier, for the award of service connection for PTSD are met. 38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1967 to May 1971, including in the Republic of Korea and in Thailand. This matter is on appeal from an April 2008, November 2018, and a September 2016 rating decision. This appeal has a lengthy procedural history. In February 2016, the Board initially denied the Veteran's service connection claim for PTSD and service connection for an acquired psychiatric disorder, after finding that the Veteran did not have a clinical diagnosis of PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court) to which the Court issued a Memorandum Decision in January 2018, vacating the February 2016 Board decision. After further development, the Board ultimately granted service connection for PTSD in an October 2018 decision, and in a November 2018 rating decision, VA assigned a 10 percent rating effective August 13, 2017 and a 30 percent rating from March 28, 2014. However, the Veteran initiated an appeal, disagreeing with the assignments of the grants, arguing that he is entitled to an earlier effective date for the grant of service connection for PTSD and that he should have been awarded an initial rating greater than 10 percent. He also appealed his 30 percent rating assigned from March 24, 2014, arguing that his symptoms are severe enough to warrant a higher rating. In June 2019, the Board denied the Veteran's claims pertaining to his PTSD and remanded the service connection claim for hypertension for additional development. The Veteran appealed that decision to the Court and a Joint Motion for Partial Remand was filed by both parties in July 2020. The parties requested the Court vacate the Board denial of entitlement to service connection for an acquired psychiatric condition (other than PTSD), an increased rating for an initial rating greater than 10 percent prior to March 24, 2014, an increased rating greater than 30 percent thereafter, entitlement to an earlier effective date prior to August 13, 2007 for the grant of service connection for PTSD (at 10 percent), and entitlement to an earlier effective date earlier than March 28, 2014 for a 30 percent rating. The issues identified by the JMR were thereby vacated by a July 2020 Order. As the matters have been remanded back to the Board, the Board notes that the parties indicated that the June 2019 Board erred when it did not respond to the Veteran's June 2019 request for the curriculum vitae of any examiners assigned pursuant to the April 2017 Board remand. While the Board agrees that the curriculum vitae should be provided pursuant to Francway, the issue pertaining to the earlier effective date for the grant of service connection for PTSD earlier than August 13, 2007, may be adjudicated in this decision. The evidence required to establish an earlier effective date is already part of the claims file and is not relevant to the qualifications of the VA examiners identified by the Veteran. Therefore, the matter of earlier effective date for service connection for PTSD earlier than August 13, 2007 will be addressed on the merits while the other matters are remanded for additional development. Earlier Effective Date The Veteran is currently seeking an earlier effective date prior to August 13, 2007, for the grant of service connection for PTSD at 10 percent. The controlling law and regulations regarding effective dates are clear. The effective date of an award of compensation based on an original claim (received beyond one year after discharge), will be the date of VA receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b)(1); 38 C.F.R. § 3.400. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Claims mean a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit. 38 C.F.R. § 3.1 (p). VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. In this case, the Veteran's claim for entitlement to service connection for PTSD was filed prior to that date. A review of the record shows that the Veteran filed a claim for service connection for a psychiatric condition, which included insomnia, on June 1, 2006. See Form VA 21-526 Veterans Application for Compensation or Pension. In his In an October 2006 statement, the Veteran specified that his service in Korea caused his insomnia. In March 2007, the Veteran sought treatment with a private psychiatrist, Dr. S.Y., who diagnosed him with PTSD. His treatment was aimed to address symptoms such as anxiety, depression, and chronic sleep problem. He continued long term treatment at the Montgomery VAMC in March 2007, June 2007, September 2007, October 2007, February 2008, June 2008, August 2008, and April 2009. Based on a September 2018 letter from Dr. F.L., he found that the Veteran was exposed to traumatic stressors during his service as a security patrolman. The stress from service combined with night shifts resulted in psychiatric problems which included poor sleeping patterns. Additionally, Dr F.L. noted that the Veteran's Social Security Administration records found that his psychiatric symptoms, which includes PTSD had caused him to become unemployable as earlier as March 4, 2006. The Board finds that the medical evidence or record strongly suggests that the Veteran's PTSD symptoms, which partly manifested as chronic sleep problems, had begun earlier than August 2007. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Taken in totality, the Veteran's private medical records indicate that his entitlement arose at the time of the June 1, 2006 date of claim. 38 C.F.R. § 3.400. Although the private medical opinion suggested the Veteran's symptoms dated back to March 4, 2006, this predates the Veteran's claim for service connection and cannot support entitlement to an effective date prior to the date of the June 1, 2006 claim. Accordingly, the requirements for an earlier effective date of June 1, 2006, are met. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413, 421 (1999). REASONS FOR REMAND As previously discussed, the Veteran argues that the June 2019 Board erred when it did not respond to the Veteran's June 2019 request for the curriculum vitae of any examiners assigned pursuant to the April 2017 Board remand. The Veteran also argues that in rejecting his entitlement for higher ratings for PTSD, the Board failed to consider and discuss a June 2019 medical opinion, which potentially contained evidence that supports the Veteran's contentions. The Board now finds that a remand is necessary prior to the adjudication of the claims. Once a veteran has raised the issue of an examiner's competency to offer a medical opinion, he or she has the right, absent unusual circumstances, to the curriculum vitae and other information about the qualifications of the examiner. Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019). Based on the Veteran's June 2019 correspondence, he requested a copy of all development ordered by the Board in its April 2017 remand, which includes the VA's engagement letters and the curriculum vitae for the examiners. See June 7, 2019 Third Party Correspondence. The remand instructions provided that in obtaining a new medical opinion, the claims file should be returned to the VA examiner that conducted the March 2014 and May 2016 VA medical reports (Dr. R.C. Ph.D). However, the requested medical opinion was obtained from a clinical psychologist, J.H., Psy. D. in April 2019, suggesting that Dr. R.C. was no longer available. In reviewing the record, the Board finds that such request would include the curriculum vitae of the examiner that conducted March 2014/May 2016 and the April 2019 evaluation. Additionally, during the pendency of the Veteran's appeal, the Board also notes that he has requested the letters of engagement and the CV of the examiner that conducted the March 2020 evaluation for his hypertension. See April 2020 Third Party Correspondence. In a February 2021 letter, the Board notified the Veteran that while it had provided him with a copy of his claims file, which included his VA examination reports, it could not provide him with the examiner's curriculum vitae. Therefore, the request was denied. Under Francway, the Court has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. Francway, 930 F.3d 1377, 1381. The Federal Circuit has held that any challenge to the expertise of a VA expert must set forth the specific reasons why the litigant concludes that the expert is not qualified to give an opinion. Typically, a claimant must have the ability to secure from the VA the information necessary to raise the competency challenge. Once the request is made for information as to the competency of the examiner, a claimant normally has the right, absent unusual circumstances, to the curriculum vitae and other information about the qualifications of a medical examiner. This is mandated by the VA's duty to assist. Francway at 1308. Therefore, the claim must be remanded for efforts to be made to obtain and provide the requested information to the Veteran. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records relating to the Veteran's psychiatric disorder. 2. The AOJ should obtain and associate with the claims file, the curriculum vitae (CV) for the medical examiner who prepared the March 2014, May 2016, April 2019, and March 2020 VA compensation reports and/or VA contracted evaluations from 1) Psychologist R. Cook, Ph.D., 2) Psychologist J. Haynes, PsyD. 3) G. Wells, FNP-C Nurse Practitioner. If the CV cannot be obtained and made available for review in the claims file, this fact should be clearly documented in the claims file along with an explanation of the reasons for the unavailability. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Yeh, 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.