Citation Nr: 21073213
Decision Date: 12/07/21	Archive Date: 12/07/21

DOCKET NO. 16-28 059
DATE:   December 7, 2021

ORDER

Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) is dismissed.

Entitlement to a rating higher than 10 percent for fragment wound of the right knee is dismissed. 

Entitlement to a rating higher than 50 percent for shrapnel wounds to the face and neck with disfigurement is dismissed. 

Entitlement to a rating higher than 30 percent for painful scars of the right knee and face is dismissed.

Entitlement to service connection for right ear hearing loss is dismissed. 

Entitlement to an effective date earlier than September 29, 2010 for the grant of service connection for PTSD is denied.

FINDINGS OF FACT

1. In a February 2021 Order, the United States Court of Appeals for Veterans Claims (Veterans Court) found that the Appellant did not raise any argument concerning the Board's denial of benefits for right ear hearing loss, increased ratings for shrapnel wounds to the face and neck with disfigurement, fragment wound of the right knee, PTSD, and painful scars of the right knee and face. 

2. The claim for service connection for PTSD was received September 29, 2010.

3. The Veteran's PTSD was diagnosed in December 2010, and there is no objective medical evidence that it manifested before that date.

CONCLUSIONS OF LAW

1. There being no longer a justiciable case or controversy, the criteria for dismissal of the appeal pertaining to service connection for right ear hearing loss, a rating higher than 50 percent for shrapnel wounds to the face and neck with disfigurement, a rating higher than 10 percent for fragment wound of the right knee, a rating higher than 70 percent for PTSD, and a rating higher than 30 percent for painful scars of the right knee and face have been met. 38 U.S.C. § § 7104, 7105; 38 C.F.R. §§ 19.7, 20.101.

2. The criteria for an effective date earlier than September 29, 2010, for the grant of service connection for PTSD are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 1966 to July 1969. He died in September 2013. The Appellant is his surviving spouse. In March 2016, the agency of original jurisdiction determined that the Appellant met the basic eligibility for substitution as the Veteran's spouse. 38 U.S.C. § 5121A; 38C.F.R.§3.1010(b).

This appeal comes before the Board of Veterans' Appeals (Board) from an October 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office.

The Appellant appealed the October 2018 Board decision to the Court to the extent that the Board denied service connection for right ear hearing loss, denied a rating higher than 50 percent for shrapnel wounds to the face and neck with disfigurement, denied a rating higher than 10 percent for fragment wound of the right knee, denied a rating higher than 70 percent for PTSD, did not grant a rating higher than 30 percent for painful scars of the right knee and face, and an earlier effective date prior to September 29, 2010 for the award of a 70 percent disability rating for PTSD. Pursuant to a Memorandum Decision, the Court, in a February 2021 Order, dismissed the claims denying benefits for right ear hearing loss, increased ratings for shrapnel wounds to the face and neck with disfigurement, fragment wound of the right knee, PTSD, and painful scars of the right knee and face as the Appellant did not raise any argument concerning the Board's denial of these claims. Further, the Court dismissed the Appellant's clear and unmistakable error (CUE) motion due to a lack of jurisdiction. The Court noted that the Board granted entitlement to service connection for left ear hearing loss in its October 2018 decision, which was fully favorable to the Appellant and there is no adverse decision she may appeal. The Court vacated the Board's October 2018 decision (as to the matter of assignment of a September 2010 effective date for the award of benefits for PTSD) and remanded the matter to the Board to consider the Appellant's theory of entitlement raised by the Appellant or the evidence of record. 

Effective Date

A claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400 (o)(2). These amendments are only applicable with respect to claims and appeals filed on or after March 24, 2015; therefore, they are not applicable in the present case. Id. at 57,686.

Entitlement to an effective date earlier than September 29, 2010 for a grant of service connection for PTSD

The Appellant contends that an effective date earlier than September 29, 2010, for the grant of service connection for PTSD in an August 2012 rating decision is warranted. 

Generally, the effective date of an award of a claim is the date of receipt of the claim application or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § § § 3.400. However, if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). 

The Board finds there is no basis under the general effective date regulations for an effective date earlier than September 29, 2010 for the grant of service connection for PTSD. In December 2010, the Veteran underwent a VA examination for PTSD and was diagnosed with PTSD, chronic, secondary to conceded stressors during military service. During an October 2010 VA mental health consultation, the Veteran reported depression and anxiety. He noted that he last took medication for his depression 17 years earlier. He reported combat memories, night sweats, irritability, and anxiety since renewing friendships with Vietnam War veterans. He was diagnosed with post traumatic sequelae, anger management problems, and rule out PTSD. During a December 2010 VA mental health consultation, the Veteran was diagnosed with PTSD. In an October 2012 notice of disagreement (NOD), the Veteran stated that he had suffered with PTSD symptoms for more than 40 years. Further, in January 2013, the Veteran reiterated that he disagreed with his "claim filed on September 29, 2010." In August 2021, the Appellant's representative argued that the Veteran's October 2012 NOD indicating PTSD symptomatology prior to the Veteran's September 29, 2010 effective date for grant of service-connection for PTSD was the basis for an earlier effective date. 

In her brief to the Court, the Appellant alleged that there was CUE as the VA medical treatment files from Dallas, Texas were not of record. 

As to pleading CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). If the error alleged is not the type of error that, if true, would be clearly and unmistakable erroneous on its face; if the claimant is only asserting disagreement with how the VA evaluated the facts before it; if the claimant has only alleged a failure on the part of VA to fulfill its duty to assist; or if the claimant has not expressed with specificity how the application of cited laws and regulations would dictate a "manifestly different" result, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994).

Here, after becoming aware of missing files, VA requested them in October 2010. A VA memorandum was issued in April 2012 noting that there had been multiple attempts to procure the Veteran's treatment records from January 1968 to September 2010; however, they were unavailable for review. VA requested that the Veteran provide any treatment records he may have had, but received no response. Subsequently, in April 2016, VA treatment records from June 1974 to February 2011 were associated with the record. The Board finds that a diligent effort was made to acquire them and that any further efforts to locate those records would be futile. Thus, the duty to assist has been satisfied. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Of note, the treatment records that have been associated with the record do not show that the Veteran had been diagnosed with PTSD prior to December 2010. 

The Board finds that for the purposes of the Veteran's PTSD effective date claim, the date on which entitlement arose was September 29, 2010. As noted above, the effective date of an award of a claim is the date of receipt of the claim application or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. (emphasis added). Here, the medical evidence of record shows that the Veteran was first diagnosed with PTSD that met the DSM criteria in December 2010, which was after his September 29, 2010 claim for service-connection for PTSD, the effective date of service connection. Based on the above, the Board does not find it necessary to analyze the receipt of the claim application as the date of the Veteran's claim for service connection for PTSD is September 29, 2010, clearly earlier than the date entitlement arose in this case. Therefore, the Veteran's claim of entitlement to an earlier effective date for his award of service connection for PTSD is denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

 

 

LLOYD MASON CRAMP

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Costello, 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.