Citation Nr: 21067656 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-08 106 DATE: November 4, 2021 ORDER Entitlement to an effective date of May 20, 1994 for the award of entitlement to service connection for posttraumatic stress disorder (PTSD), depressive disorder NOS, and anxiety disorder NOS is granted. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for mental illness on May 20, 1994. The claim was first denied by the regional office in a December 1994 rating decision. The Veteran appealed the decision. 2. In an August 1997 decision, the Board denied entitlement to service connection for posttraumatic stress disorder (PTSD), depressive disorder NOS, and anxiety disorder NOS. 3. The Veteran submitted a claim to reopen the service connection for psychiatric disorder in July 2009. 4. In a November 2012 decision, the Board determined that the agency of original jurisdiction had received service department records since 1997 that had existed but were not previously associated with the claims file prior to the 1997 Board decision. 5. In the November 2012 decision, the Board granted entitlement to service connection for an acquired psychiatric disorder. 6. In the subsequent November 2012 rating decision, the RO implemented the Board's decision and assigned an effective date of entitlement of July 20, 2009 for the grant of service connection for the Veteran's acquired psychiatric disorder. CONCLUSION OF LAW The criteria for an effective date of May 20, 1994 for the award of entitlement to service connection for an acquired psychiatric disorder are met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from February 1980 to May 1982. 1. Entitlement to an effective date prior to July 20, 2009 for award of entitlement to service connection for posttraumatic stress disorder (PTSD), depressive disorder NOS, and anxiety disorder NOS The Veteran contends that he is entitled to an earlier effective date prior to July 20, 2009, related to the first claim he submitted for entitlement to service connection for an acquired psychiatric disorder, which was May 20, 1994. After a thorough review of the evidence, the Board finds that an effective date of May 20, 1994 for the award of entitlement to service connection for an acquired psychiatric disorder is warranted. The Veteran submitted a claim for entitlement to service connection for "mental illness" on May 20, 1994. The regional office denied the claim in December 1994 and November 1995 rating decisions. The Veteran perfected an appeal to this denial. In an August 1997 decision, the Board denied entitlement to service connection for an acquired psychiatric disorder. On July 20, 2009, the Veteran submitted a claim for entitlement to service connection for PTSD. In an August 2010 rating decision, the regional office reopened the prior claim for service connection for an acquired psychiatric disorder but denied the claim on the merits. The Veteran perfected an appeal. In a November 2012 decision, the Board granted entitlement to service connection for an acquired psychiatric disorder (PTSD with associated anxiety and major depression). In the implementing rating decision in November 2012, the RO assigned an effective date of July 20, 2009 for the grant of service connection. On November 26, 2012, the Veteran submitted a statement disagreeing with the assigned effective date, stating that he believed it should date back to 1994. On December 12, 2012, the RO sent the notification letter of the award for service connection for PTSD with the effective date of July 20, 2009 in which the information for appealing stated that the Veteran had one year to write a statement explaining why. In March 2013, the Veteran submitted another written statement referencing an earlier effective date for the grant of service connection for PTSD. In a July 17, 2013 notification letter, the RO acknowledged receipt of the Veteran's claim for an earlier effective date regarding the PTSD issue, but erroneously stated that the Veteran had not appealed within the one-year time frame, which had not elapsed at the time of the July 2013 notification letter. The Veteran resubmitted the prior earlier effective date request in February 2015. On July 15, 2015, the Veteran submitted a VA Form 21-0958 notice of disagreement for the effective date of entitlement to service connection for PTSD. In June 2015, the Veteran submitted a VA Form 21-526EZ, claim for compensation for PTSD. In an August 2015 written statement to VA, the Veteran withdrew the July 2015 notice of disagreement. In a November 2015 rating decision, the RO denied an earlier effective date prior to July 20, 2009 for the issue of PTSD. In July 2016, the Veteran submitted a notice of disagreement as to the effective date for PTSD. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The Veteran chose to participate in VA's test program "RAMP", the Rapid Appeals Modernization Program. This decision has been written in consideration of the AMA framework. In April 2018, the Veteran submitted a RAMP Opt-in Form. In a subsequent April 2018 notification letter, VA confirmed receipt of the Veteran's RAMP Opt-in and withdrawal of the appeal for entitlement to an earlier effective date for service connection for PTSD from the prior legacy appeals system into the new supplemental claim lane. In a July 2018 rating decision under the RAMP system, the RO denied entitlement to an earlier effective date prior to July 20, 2009 for the issue of service connection for PTSD. There were no favorable findings noted. In July 2018, the Veteran submitted a RAMP response requesting the higher-level review lane. In an undated letter, filed electronically as October 2018, the Board notified the Veteran that it had received a RAMP notice of disagreement and would place the Veteran's claim in the evidence review lane. In an April 2019 decision, the Board denied an earlier effective date prior to July 20, 2009 for the grant of entitlement to service connection for PTSD. The Veteran appealed to the Court of Appeals for Veterans Claims (Court), which ordered that the Joint Motion for Partial Remand (JMPR) from the parties was granted, which vacated the April 2019 Board decision denying an earlier effective date prior to July 20, 2009 for the grant of entitlement to service connection for PTSD. In July 2020, the Board issued another decision denying an earlier effective date for the award of entitlement to service connection for PTSD. The Veteran again appealed the Board decision to the Court, which order granted the Joint Motion for Remand between the parties that requested vacatur of the July 2020 Board decision and requiring a 90-day evidence submission letter be sent to the Veteran. The Board notes that although it appears that the RO did not take timely action on the Veteran's November 2012 or March 2013 notices of disagreement, the Veteran did in fact submit a timely notice of disagreement to the November 2012 implementing rating decision that granted the entitlement to service connection for PTSD with an effective date of July 20, 2009. Such action was a proper avenue to appeal the effective date assigned to the PTSD issue at the time under 38 C.F.R. §§ 20.300 and 20.302. The Board also notes that the Veteran later opted into the new RAMP program which has its own procedural rules. Notwithstanding any procedural irregularities, and because the Board herein is granting the Veteran's claim for an earlier effective date for the award of entitlement to service connection for PTSD, the Board finds that VA constructively accepted the required appeals paperwork pertaining to this claim, and therefore it is not prejudicial to the Veteran to forego further analysis of the procedural aspects of the appeals paperwork pertaining only to this specific underlying issue. The Board notes that the new AMA framework also changed the standards for evaluation of reopening of claims based on the submission of new evidence to a "new and relevant" standard in contrast to the prior "new and material" standard. 38 C.F.R. §§ 3.156, 3.2501. The Veteran opted into the new AMA framework during the course of the most recent Board appeals. However, the November 2012 Board decision was decided under the prior "new and material" standard in place at that time. Because the key issue relates to the timeline of obtaining of department service records between the August 1997 Board denial of an earlier effective date regarding PTSD and the November 2012 grant of entitlement to service connection, the regulations discussed below are in the prior "new and material" standard. Furthermore, the rule pertaining to the association of additional service records that existed but were not previously considered is an exception to the new evidence analysis under either framework. 38 C.F.R. § 3.156. Effective dates for awards of benefits, including those benefits awarded because of new and material evidence, are generally governed by 38 U.S.C. § 5110. See Akers v. Shinseki, 673 F.3d 1352, 1357 (Fed. Cir. 2012). The statute provides that the effective date for an award of Veterans benefits based on a reopened claim after final adjudication "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110 (a). The Secretary promulgated a regulation, 38 C.F.R. § 3.400, which implements § 5110(a), and similarly provides that the effective date for an award of benefits shall "be the date of receipt of the claim or the date entitlement arose, whichever is the later." Section 3.156(c) is an exception to the general rule in § 3.156(a). Section 3.156(c) provides for earlier effective dates in certain conditions. In contrast to the general rule, § 3.156(c) requires VA to reconsider, rather than reopen, a veteran's claim when relevant service department records are newly associated with the Veteran's claims file, whether or not they are "new and material" under § 3.156(a). 38 C.F.R. § 3.156(c)(1) (noting that § 3.156(c) applies "notwithstanding paragraph (a)"). In other words, § 3.156(c) seeks to place a veteran in the position he would have been had VA been able to consider the relevant service department record at the time of initial adjudication of the claim. Initially, the Board notes that the rating decisions prior to 1997 and the Board decision of 1997 reference as evidence the Veteran's service treatment records and service personnel records. In the August 1997 decision, the Board referenced a May 1982 separation medical examination, e.g. After the Veteran filed the claim to reconsider the issue of PTSD in 2009, the RO associated service medical records and service personnel records to the claims file that are electronically listed as received in September 2015. Some of those are hand stamped as received in March 2010, hence prior to the Board's 2012 decision. With relevance to the appeal herein, the November 2012 Board decision stated that, "Although service connection for an acquired psychiatric disorder was denied in a final August 1997 Board decision, in March 2010 the RO obtained relevant office service department records that existed, but that had not presently been associated with the claims folder. As such, the Board must consider the acquired psychiatric disorder claim on a de novo basis, and without regard to the finality of the August 1997 Board decision 38 C.F.R. § 3.156(c)." Accordingly, the Board has already found that the additional service department records associated with the record since the prior 1997 Board decision meet the requirements to reconsider the claim from the original filing date under 38 C.F.R. § 3.156(c). The Board finds that its August 1997 decision did not become final pursuant to 38 C.F.R. § 3.156(c). Accordingly, an earlier effective date is warranted under 38 C.F.R.§ 3.156(c). As the claim is being reconsidered, not reopened, the effective date is affixed by operation of 38 C.F.R. § 3.400 (b)(2)(i) for entitlement to service connection arising on a direct basis. The effective date to be assigned is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim, or the date entitlement arose, whichever is later, will be assigned as the effective date. 38 C.F.R. § 3.400 (b)(2)(i). Here, the Veteran separated from service in 1982 and first submitted a claim for entitlement to service connection for mental illness on May 20, 1994 with contemporaneous medical treatment records. There is a July 1994 letter from a treating psychiatrist stating that the Veteran is diagnosed with major depression and has been treated under her care for one year. The November 2012 Board decision references this 1994 letter as well as others from that time frame to support its grant of entitlement to service connection for a psychiatric disorder. As this evidence is representative of the Veteran's currently service-connected psychiatric disorder and documents its existence since at least the time of submission of the claim on May 20, 1994, the Board finds that an effective date of May 20, 1994 is warranted for the grant of entitlement to service connection for an acquired psychiatric disorder categorized as posttraumatic stress disorder (PTSD), depressive disorder NOS, and anxiety disorder NOS. The appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.