Citation Nr: 21067996 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 18-36 049 DATE: November 8, 2021 ORDER Entitlement to an earlier effective date of November 17, 2004 for the Veteran's award of entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an initial rating in excess of 50 percent for PTSD is remanded. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right eye disability is remanded. FINDING OF FACT The Veteran filed an informal claim for entitlement to service connection for PTSD on November 17, 2004. CONCLUSION OF LAW The criteria are met for an earlier effective date of November 17, 2004, but no earlier, for the grant of entitlement to service connection for PTSD. 38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.156(c), 3.160(c), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 to July 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board denied service connection for a right knee disability, a left knee disability, a right eye disability, and a psychiatric disability, other than PTSD. The Board also denied entitlement to an initial rating in excess of 50 percent and an effective date prior to August 31, 2006 for the Veteran's service-connected PTSD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which, in March 2021, granted a Joint Motion for Remand (JMR). The Court's order vacated the Board's July 2019 decision and remanded the matter to the Board consistent with the terms of the joint motion. Entitlement to an earlier effective date of November 17, 2004 for the Veteran's award of entitlement to service connection for PTSD An April 2016 Board decision granted entitlement to service connection for PTSD. A May 2016 rating decision implemented the April 2016 Board decision. The May 2016 rating decision assigned a rating of 50 percent from August 31, 2006 for the Veteran's service-connected PTSD. Notably, the rating decision stated: "The effective date for this grant is based upon the original date of claim for this condition on appeal." The Veteran's attorney argued that the effective date for the grant of entitlement to service connection for PTSD should be from the date of the informal claim filed in November 2004. The Veteran submitted a VA Form 21-4138, Statement in Support of Claim, in November 2004. The Veteran stated that he was filing an "informal application" for "entitlement to a service-connected evaluation (compensable) for my Post Traumatic Stress Disorder (PTSD) condition in accordance with (LAW) 38 C.F.R. § 3.4(b) and 38 U.S.C. § 1110." The record contains no earlier claim requesting entitlement to service connection for PTSD. The Board also notes that a December 2004 VA treatment record noted that a depression screening was positive, and that the Veteran insisted that he suffered from PTSD. The VA provider determined that objective data did not support the Veteran's subjective complaints. Generally, the effective date of an evaluation and award of compensation is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds that the Veteran filed a claim for entitlement to service connection for PTSD on November 17, 2004 but not earlier. The Board also finds that the evidence is at least in equipoise with regard to the date entitlement arose. See December 2004 VA treatment record. Accordingly, in affording the Veteran the benefit of the doubt, the Board finds that an effective date of November 17, 2004, but not earlier, is granted for the Veteran's award of entitlement to service connection for PTSD. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 50 percent for PTSD is remanded. 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is remanded. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a left knee disability is remanded. 5. Entitlement to service connection for a right eye disability is remanded. As previously noted, the Veteran's claims for entitlement to an increased initial rating for PTSD and for entitlement to service connection for an acquired psychiatric disability, a right knee disability, a left knee disability, and a right eye disability were the subject of the March 2021 Joint Motion for Remand granted by the Court in March 2021. The Joint Motion for Remand was based on the Board's failure to comply with a March 2018 privacy act request that requested a copy of the Veteran's VA examinations. The Board notes that the privacy act request has since been fulfilled; however, requests for the curriculum vitae for certain examiners remain outstanding. The Veteran has been afforded several VA examinations for the claims on appeal. VA examinations for the Veteran's claimed right eye disability were conducted in January 2017 and April 2019 by Dr. R-K. Psychiatric VA examinations were conducted in February 2017 and March 2019 by Dr. A.F. A VA examination for the Veteran's claimed bilateral knee disability was most recently conducted in April 2019 by Dr. L-L. VA is presumed to have properly chosen an examiner who is qualified to provide competent medical evidence. If the Veteran wishes to challenge the competency of an examiner, the Veteran may request the curriculum vitae and other information about the qualification of a medical examiner. Francway v. Wilkie, 940 F.3d 1304 (Fed. Cir. 2019). The Veteran's attorney has requested on many occasions and as recently as September 2021 that copies of the curriculum vitae be provided for Drs. R-K, A.F., and L-L. The Board also notes that a copy of the curriculum vitae was requested for Dr. E.M; however, Dr. E.M conducted examinations in September 2019 for other claims that are currently being developed by the RO and not addressed in this remand. Once the request is made for information as to the competency of the examiner, the Veteran has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. Francway, 940 F.3d at 1308. The Board finds that, pursuant to Francway, this matter should be remanded yet again so that appropriate efforts can be made to provide the Veteran with the requested documents/information. The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with evidence sufficient to support the expertise of Dr. R-K who conducted January 2017 and April 2019 VA examinations, Dr. A.F. who conducted February 2017 and March 2019 VA examinations, and Dr. L-L who conducted the April 2019 VA examination. 2. All attempts made to gather and provide the Veteran with the aforementioned information should be documented in the Veteran's claim file. 3. After the above development has been accomplished, perform any additional development deemed warranted. 4. Then, readjudicate the claim. If the determination of the claim remains unfavorable to the Veteran, then issue a Supplemental Statement of the Case and afford him a reasonable period of time to respond before returning the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Palombi 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.