Citation Nr: 21067728 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 16-15 266 DATE: November 5, 2021 ORDER An earlier effective date of May 30, 1995, but no earlier, is granted for the grant of service connection for an acquired psychiatric disorder, to include an anxiety disorder and posttraumatic stress disorder (PTSD). REMANDED Entitlement to an effective date prior to February 7, 2001, for the grant of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an effective date prior to February 7, 2001, for the grant of eligibility to Dependents' Education Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and entitlement to a TDIU that was received by VA on May 30, 1995. 2. In relation to the May 30, 1995 claim, the Veteran provided the date and place of the in-service stressor; this information was received by VA on July 24, 1995. 3. VA confirmed the in-service stressor in November 2009 and December 2009. CONCLUSION OF LAW 1. The criteria are met for an earlier effective date of May 30, 1995, for the grant of service connection for an acquired psychiatric disorder, to include an anxiety disorder and PTSD, but not for an even earlier date. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1969 to January 1972. These issues were remanded by the Board in a July 2015. The Board denied these issues in a September 2018 decision. The Veteran than appealed the decision to the United States Court of Appeals for Veterans Claims (Court). The Court entered a joint motion for partial remand (JMPR). In a February 2021 decision, the Board remanded the issues for further development. As a result of the development, the AOJ issued a July 2021 rating decision granting an earlier effective date of February 7, 2001 for the grant of service connection for an anxiety disorder, the grant of TDIU, and the grant of DEA. The issues have since returned to Board for appellate review. Effective Date 1. Entitlement to an effective date prior to February 7, 2001 for the grant of service connection for an acquired psychiatric disorder, to include an anxiety disorder and PTSD, is granted. Generally, the effective date of an award of disability compensation shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). However, an award based all or in part on relevant official service department records that existed but were not associated with the claims file when VA first decided the claim 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)(1). At any time after VA issues a decision on a claim, 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). Such records include, but are not limited to: service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of § 3.156(c) are met; additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and declassified records that could not have been obtained because the records were classified when VA decided the claim. Id. However, § 3.156(c) does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. The Court of Appeals of Veterans Claims (Court) in Mayhue v. Shinseki, 24 Vet. App. 273 (2011) determined that the Board's application of 38 C.F.R. § 3.156(c)(2) was in error given that the information used to verify the appellant's stressor included his unit number and dates of duty in Vietnam were always a part of the record. Mayhue, 24 Vet. App. at 280. The Veteran seeks an effective date earlier than February 7, 2001 for the grant of service connection for an acquired psychiatric disorder, to include an anxiety disorder and PTSD. By way of history, the Veteran filed an original claim for service connection for an acquired psychiatric disorder in June 1981 that was denied in a June 1981 rating decision. The Veteran appealed the claim to the Board and the Board denied the claim in an October 1982 decision. The October 1982 claim was final, as the United States Court of Veterans Claims (Court) was not established at that time. The Veteran filed subsequent petitions to reopen the claim in October 1983, to which VA responded with a notification letter advising the Veteran that the Board denied the claim in an October 1982 decision. On May 30, 1995, VA received the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder and entitlement to a TDIU. The Veteran contends that an earlier effective date of June 1981, the date of the initial claim for an acquired psychiatric disorder, is warranted pursuant to 38 C.F.R. § 3.156(c). Specifically, the Veteran, through his attorney, asserts that JSRCC records associated with the claims file after the initial denials, which were used to later reopen the claim, warrant a grant service connection for service-connected anxiety disorder dated to June 1981. In July 1995, in response to the May 30, 1995 claim, VA requested information about the Veteran's in-service stressor. Also in July 1995, military personnel records were associated with the claims file that include the Veteran's record of assignments, to include his assignment to the 552nd maintenance company from June 1970 to April 1971. In a July 1995 correspondence, the Veteran stated that while with the 552nd company he and about 15 others were attacked while they were on guard of the camp. A March 1996 rating decision denied entitlement to service connection for PTSD. The Agency of Original Jurisdiction (AOJ) stated there is no verifiable stressor as the Veteran did not provide specific dates and there is no diagnosis of PTSD. The AOJ stated the February 1995 VA examination found the Veteran to only have a diagnosis of alcohol dependence. A June 1996 VA mental disorder examination found the Veteran to have diagnoses of paranoid schizophrenia and alcohol and drug use in remission. In April 1997, VA sent a request to the U.S. Armed Services Center for Research of Unit Records (USACRUR) regarding the Veteran's in-service stressor with the 552nd company in Vietnam. On the July 1997 VA mental disorder examination, the examiner indicated the Veteran has diagnoses of PTSD, schizophrenia, and a history of polysubstance abuse. In May 1998 USACRUR letter, the USACRUR stated that the morning reports from the 552nd Maintenance Company in 1970 did not verify attacks during the Veteran's tour in Vietnam. In a July 1999 decision, the Board denied the Veteran's claim of entitlement to service connection for PTSD. The Veteran did not appeal the Board decision. On August 21, 2000, the Veteran submitted photographs and a statement that he also performed duties as a tower guard during his service in Vietnam. The Veteran stated he was submitting this information as new evidence for his claim for entitlement to service connection for PTSD. In January 2001, a lay statement was submitted by C.D.C. stating that he served with the Veteran in Vietnam from 1970 to 1971. He stated he and the Veteran did perform guard duty and that the compound came under fire several times. C.D.C. stated he did not recall the unit number. On February 7, 2001, the Veteran indicated in writing that he would like to reopen his claim for entitlement to service connection for PTSD. In a May 2001 rating decision, the AOJ found that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for PTSD. The Veteran appealed the decision to the Board. In a November 2003 decision, the Board reopened the claim of entitlement to service connection for PTSD and remanded the issue for further development. In an October 2005 VA PTSD examination, the Veteran was diagnosed with substance abuse in remission and cannabis abuse and antisocial personality disorder. Upon return to the Board, the Board issued a February 2007 decision again remanding the claim for PTSD for further development. After the required development, the issue returned to the Board, and the Board issued a September 2008 decision denying the Veteran's claim for entitlement to service connection for PTSD due to the lack of a verified in-service stressor. The Veteran did not appeal the September 2008 decision. On July 14, 2009, the Veteran reported that he is requesting to reopen his claim for entitlement to service connection for PTSD. In August 2009 and September 2009, the Veteran again reported his in-service stressor with the 552nd company from 1970 to 1971. In November 2009, VA stated that the information provided by the Veteran was insufficient to corroborate the in-service stressor. However, also in November 2009, VA verified the Veteran's stressor using the company information and the dates of the Veteran's Vietnam service, June 1970 to May 1971, in the Defense Personnel Records Information System (DPRIS). DPRIS verified that the Veteran's compound came under attack in October 1970. Also, in December 2009, DPRIS revealed the Veteran's base came under attack in September 1970. On a January 2010 VA PTSD examination, the examiner indicated the Veteran has diagnoses of a panic disorder without agoraphobia, schizophrenia paranoid type, antisocial personality disorder, and alcohol abuse and cannabis abuse. The examiner stated there is an overlap in the symptoms of anxiety, PTSD, and schizophrenia. The July 2010 examiner stated that the Veteran's anxiety and panic attacks may be related to his war experience due to being fearful in unfamiliar surroundings and panicked around groups of people. In a February 2010 rating decision, the AOJ again denied the Veteran's claim of entitlement to service connection for PTSD due to lack of a PTSD diagnosis. The Veteran appealed the rating decision. In an April 2014 decision, the Board reopened the claim due to the submission of new and material evidence and remanded the issue of entitlement to service connection for PTSD for further development. At a July 2014 VA PTSD examination, the examiner found the Veteran to not have a diagnosis of PTSD, but instead diagnosed mixed anxiety and depressive disorder. As a result, the AOJ issued a September 2014 rating decision granting entitlement to service connection for an anxiety disorder. The Veteran filed a February 2015 notice of disagreement seeking an increased rating for an anxiety disorder, to include entitlement prior to July 2009 and entitlement to a TDIU. In a June 2015 decision, the Board remanded the issue of entitlement to a rating in excess of 30 percent for an anxiety disorder for further development. As a result, in a March 2016 rating decision, the AOJ granted an increase for the Veteran's anxiety disorder to 70 percent, granted entitlement to a TDIU, and granted entitlement to DEA. The Veteran appealed the March 2016 rating decision in an August 2016 NOD. The Veteran's attorney indicated the Veteran is entitled to an effective date of 1981 for the grant of service connection for the anxiety disorder because the Board reopened the claim for entitlement for service connection for PTSD based on JSRRC records, which ultimately led to the grant of benefits. In an August 2016 correspondence, the Veteran's attorney stated that the Veteran seeks entitlement to an earlier effective date for the establishment of service connection for an anxiety disorder to 1981, the date the Veteran first filed a claim for an acquired psychiatric disorder based on 38 C.F.R.§ 3.156(c). The attorney asserts that the AOJ failed to address and consider the fact that VA reopened the Veteran's claim based on JSRRC records, which led to the grant of benefits. In a September 2018 Board decision, the Board denied the Veteran's claims for a rating in excess of 70 percent for an anxiety disorder, an effective date prior to July 14, 2009 for the grant of service connection for anxiety disorder, an effective date prior to July 14, 2009 for entitlement to a TDIU, and an effective date prior to July 14, 2009 for the grant of DEA. The Veteran appealed the decision to the Court. The Court issued an April 2019 Joint Motion for Partial Remand (JMPR) for the earlier effective date claims due to the submission of JSSRC records that may be new evidence and to determine whether 38 C.F.R. § 3.156(c) applies. The Court found that the issues of an earlier effective date for the grant of TDIU and DEA are inextricably intertwined with the issue of entitlement to an earlier effective date for the grant of service connection for an anxiety disorder. As a result of the April 2019 JMPR, an October 2019 Board decision remanded the issues of an earlier effective date for the grant of service connection for anxiety disorder, TDIU, and DEA for further development. In a May 2020 VA medical opinion, the examiner restated the evidence, but did not opine as to the onset of the Veteran's symptoms for diagnosis or comment on the conflicting evidence. In a July 2020 VA medical opinion, the examiner opined that the Veteran's acquired psychiatric disorder symptoms have been present since at least 1977 and over the years the Veteran's prior diagnosis of schizophrenia has been found to not be supported by psychological testing and treatment records. The examiner stated that some of the content of his "hallucinations" was related to combat stress exposure. The examiner stated that schizophrenia should have never been diagnosed because of his active drug and alcohol use. The examiner stated that most of the records indicate the Veteran does not meet the full criteria for PTSD, but instead meets most of the criteria. The examiner stated that most recently, medical providers have confirmed a diagnosis of unspecified anxiety disorder. The examiner stated that the Veteran's diagnosis may also be diagnosed as other trauma and stressor related disorder. The examiner stated that symptoms of panic, sleep disturbance, anxiety, and depression have been noted as early as 1977 and the Veteran has had symptoms since 1977. The examiner concluded that the most current diagnosis is other trauma and stressor related disorder. In an August 2020 VA addendum medical opinion, the examiner restated that the Veteran should have never been diagnosed with schizophrenia because of his active drug and alcohol use. The examiner stated that the Veteran's hallucinations were related to combat stress exposure and stated that providers have confirmed an anxiety condition, trauma and stress symptoms related to combat including sleep issues, panic disorder, and symptoms of depression that were misdiagnosed as early as 1977 and were complicated by polysubstance abuse and dependence. In February 2021, the Veteran's appeal returned to the Board for review. In the February 2021 decision, the Board again remanded the issues for further development. In a June 2021 VA PTSD examination, the examiner indicated the Veteran has a diagnosis of PTSD, alcohol abuse, bereavement (due to the death of his daughter and dog). The examiner opined that it is at least as likely as not due to the Veteran's service-connected disorder and/or more likely than not due to the in-service stressor. The examiner stated that alcohol dependence treats the symptoms manifesting from PTSD and bereavement. The examiner stated that alcohol dependency did not cause the PTSD, but PTSD does have an indirect causal factor in the dependence of substance abuse. The examiner concluded that the Veteran's PTSD causes total occupational and social impairment. The June 2021 VA examiner remarked that what is referred to in the medical history as delusional thinking, hallucinations, and schizophrenia can be attributed to posttraumatic stress symptoms and/or alcohol abuse or intoxication with psychotic features. The examiner stated that the Veteran does not present with schizophrenia and/or psychosis or thought disorders when at baseline functioning. The examiner stated that the Veteran does present with psychosis when intoxicated and/or in transitory moments of flashbacks from PTSD. The examiner stated that when factoring in the Veteran's in-service stressors, one can better understand alcohol as a coping strategy when put into context. The examiner stated that when the Veteran returned home from service, he was changed and emotionally impaired for the remainder of his life. The examiner stated that there is no question that what the Veteran witnessed and encountered permanently caused internal strife. The examiner noted that each prior clinician diagnosed the Veteran based on their training and diagnostic skills, but what appears to be missing throughout is consideration of the human factor, to include in-service stressors from the Veteran's service in Vietnam. The June 2021 examiner concluded that the Veteran's PTSD is at least as likely as not due to the in-service stressors and most likely dates back to time of separation from service, with his service-connected anxiety disorder dating back to 1981. Also, the diagnosis of alcohol dependency with psychotic features is at least as likely as not due to the Veteran's service-connected disorder and/or more likely due to the in-service stressors and was most likely exacerbated by post-service difficulties reintegrating back into civilian life. As a result of the development, the AOJ issued a July 2021 rating decision granting an earlier effective date of February 7, 2001 for the grant of service connection for an anxiety disorder, the grant of TDIU, and the grant of DEA. The AOJ stated that February 7, 2001 is the date the Veteran's claim was first continuously prosecuted. Upon review of the record, the Board finds that there is sufficient evidence for VA to have identified and verified the Veteran's claimed stressor prior to February 7, 2001, and 38 C.F.R. § 3.156(c) applies in this case. Specifically, here the Veteran filed a petition to reopen the claim of entitlement to service connection for an acquired psychiatric disorder on May 30, 1995. The Veteran conveyed information to VA about his in-service stressors in July 1995. Using the information provided in 1995, VA verified the stressor though DPRIS in November and December 2009. VA was in possession of this information in 1995, but did not locate this information until 2009, after previous final denials. Therefore, his service department recordon which the ultimate grant of service connection was predicatedexisted and was known to VA with sufficient specificity to confirm the occurrence of the claimed stressors at the time of the May 1995 claim. Accordingly, the May 1995 petition to reopen the claim of entitlement to service connection for an acquired psychiatric disorder is reconsidered in this Board decision. See 38 C.F.R. § 3.156(c). As above, the effective date of an award of disability compensation is the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the effective date is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). The record reflects that the Veteran manifested symptoms of an anxiety disorder, trauma disorder, or PTSD prior to filing his May 1995 petition to reopen the claim. However, the record does not show that the Veteran provided any information for VA to verify his in-service stressors prior to May 1995. The Board recognizes the Veteran's contention, through his attorney, that service records were associated with the claims file after the original 1981 claim, thereby invalidating the original claim. However, § 3.156(c) does not apply to records that VA could not have obtained when it decided the claim because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, JSRRC, or any other official source. The Board finds that 38 C.F.R. § 3.156(c)(2) applies to the period prior to May 3, 1995, because the Veteran did not provide actionable information for VA to obtain the relevant service records. Therefore, the effective date is the date the claim was received, May 30, 1995, which is the earliest effective date that can be assigned for service connection for an acquired psychiatric disorder, to include an anxiety disorder and PTSD. 38 C.F.R. § 3.156(c)(3); Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011). The Veteran has had an acquired psychiatric disorder, to include an anxiety disorder and PTSD throughout the course of this claim. The Veteran provided sufficient information for VA to identify and obtain the service records prior to the February 2001 rating decision denying his claim. The grant of service connection for an acquired psychiatric disorder, to include an anxiety disorder and PTSD, is based in part upon the details of stressors contained in these relevant records. Thus, an earlier effective date of May 30, 1995 is warranted for the grant of service connection for an acquired psychiatric disorder, to include an anxiety disorder and PTSD. 38 C.F.R. §§ 3.156(c), 3.400. REASONS FOR REMAND 1. Entitlement to an effective date prior to February 7, 2001 for the award of TDIU is remanded. 2. Entitlement to an effective date prior to February 7, 2001 for the award of DEA is remanded. The claim for entitlement to an effective date of May 30, 1995, for the grant of service connection for an acquired psychiatric disorder is herein granted. The grant will be effectuated by the agency of original jurisdiction; the Board will not assign a rating in the first instance for the newly awarded time period. As the claims for an effective date earlier than February 7, 2001, for the grant of a TDIU and DEA benefits are inextricably intertwined with the rating to be assigned for the now-granted claim for an effective date earlier than February 7, 2001, for the grant of service connection for an acquired psychiatric disorder, they are deferred pending effectuation of the latter claim. Harris v. Derwinski, 1Vet. App.180 (1991) The matters are REMANDED for the following action: 1. Issue a rating decision effectuating the grant as discussed above. 2. Thereafter, readjudicate the Veteran's claim for entitlement to an effective date prior to February 7, 2001 for the award of TDIU and for DEA benefits. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.