Citation Nr: 21074505 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-19 458 DATE: December 15, 2021 ORDER An effective date of November 27, 2002, but no earlier, for the award of service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. On November 27, 2002, the Department of Veterans Affairs (VA) received the Veteran's original claim for service connection for PTSD. 2. In rating decisions dated in July 2003 and April 2007, the Agency of Original Jurisdiction (AOJ) denied service connection for PTSD, and in August 2007, the AOJ declined to reopen the claim for service connection for PTSD. 3. On May 18, 2011, VA received the Veteran's informal application to reopen her claim of entitlement to service connection for PTSD. 4. Relevant official service department records that existed at the time of the July 2003 rating decision have been associated with the record since the issuance of such decision. CONCLUSION OF LAW The criteria for an effective date of November 27, 2002, but no earlier, for the award of service connection for PTSD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 2000 to November 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2012 by a VA Regional Office. In September 2020, the Board denied entitlement to an effective date prior to May 18, 2011, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In June 2021, the Court granted a Joint Motion for Remand (JMR) that vacated and remanded the case to the Board for readjudication. Entitlement to an effective date prior to May 18, 2011, for the award of service connection for PTSD. The Veteran asserts she is entitled to an effective date earlier than the current effective date of May 18, 2011, for the award of service connection for PTSD. Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. However, the provisions of 38 C.F.R. § 3.156(c)(1) provide that, at any time after VA issues a decision on a claim, if it 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. Such records include service records that are related to a claimed in-service event, injury, or disease. This regulation does not apply to records that VA could not have obtained when it decided the claim because they did not exist or because the claimant failed to provide sufficient information for VA to identify and obtain the records. Id. at (c)(2). An award made based all or in part on the records identified by paragraph (c)(1) is effective on the date entitlement arose or the date VA received the previously denied claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously denied claim. Id. at (c)(3). Such regulation essentially establishes that, where an initial claim is denied due to the lack of evidence of an in-service event, but is later granted based all or in part on subsequently acquired service records establishing the in-service event and a nexus between the in-service event and the current disability, the claimant is entitled to a retroactive evaluation of the disability to assess the proper effective date, which would be the date of the original claim or the date entitlement otherwise arose, whichever is later. Id.; Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008); Blubaugh v. McDonald, 773 F.3d. 1310 (Fed. Cir. 2014) (section 3.156(c) only applies 'when VA receives official service department records that were unavailable at the time that VA previously decided a claim for benefits and those records lead VA to award a benefit that was not granted in the previous decision.' New and Material Evidence, 70 Fed.Reg. at 35,388.); Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017) (the term "relevant official service department record" in 38 C.F.R. § 3.156(c)(1) means "noncumulative and pertinent to the matter at issue in the case"). In this sense, the original claim is not reopened, rather, it is reconsidered and such serves as the date of the claim and the earliest date for which benefits may be granted. Considering the evidence of record under the laws and regulations as set forth above, the Board finds that the correct effective date for the Veteran's award of service connection for PTSD is November 27, 2002, the date VA received the Veteran's original service connection claim. The Veteran was discharged from active service on November 22, 2002. She first submitted a claim for service connection for PTSD on November 27, 2002. In a July 2003 rating decision, the AOJ denied the Veteran's claim. The Veteran submitted a notice of disagreement in January 2004, and the AOJ issued a statement of the case (SOC) on April 8, 2004. The SOC noted that the record showed that the Veteran suffered from PTSD and depression. However, the AOJ denied the Veteran's claim because it found no evidence showing that the Veteran's PTSD was due to her active service. The Veteran submitted a request to reopen the claim of service connection for PTSD on March 12, 2007. The AOJ reopened but denied the claim in an April 2007 rating decision and then declined to reopen the claim in August 2007. The Veteran submitted an application to reopen the claim of entitlement to service connection for PTSD on May 18, 2011. In February 2012, several of the Veteran's service treatment records and military personnel records were added to the claims file. The Veteran underwent a VA examination for PTSD in August 2012. The VA examiner provided a diagnosis of PTSD and observed that the Veteran reported a military sexual trauma experience that occurred on June 23, 2001. The VA examiner also noted a November 2002 Department of the Air Force Memorandum that indicated, "The evidence supports a discharge based on misconduct. Probation and rehabilitation are not approved." Also, another Department of the Air Force Notification Memorandum from 10 days earlier indicated multiple Letters of Counseling dating from May 2001 to October 2002, multiple letters of reprimand dating from October 2001 to October 2002, and an Article 15 received on April 2002. April 2004 treatment notes indicate that the Veteran was admitted for hospitalization due to polysubstance overdose. She was stated to have a history of depression and PTSD with prior suicide attempt and presented to the emergency room for polysubstance overdose with mental status changes. Military treatment records from August 2002 and September 2002 at a Medical Group Life Skills Support Center at Kirtland Air Force Base indicate that the Veteran had a past psychiatric history of adjustment disorder with depressed mood. The Veteran stated that she was treated for depression and alcohol abuse while in the military in 2002. She also said that she received VA outpatient mental health treatment from 2002 to 2004. Additionally, the Veteran stated that after the June 2001 sexual assault, she began having symptoms such as trouble sleeping, nightmares, hypervigilance, and easy startle response. She also had problems with anger, concentration, and memory. She stated that she began to take an "I don't care" attitude with work, and her work performance, as well as her work attitude and behaviors, deteriorated further and further over time. She also began to become very socially isolated because she was afraid of people, did not trust people, and did not want anyone to touch her. She said that she continued to use alcohol even after she was sent to alcohol classes in the Air Force, and she subsequently received a driving while intoxicated charge in 2002. The August 2012 VA examiner determined that the Veteran's PTSD was at least as likely as not incurred in or caused by her active service. The VA examiner found that the Veteran's history indicated the presence of markers that supported the possibility that her claimed military sexual trauma (MST) occurred. The markers included deterioration in work behavior and work performance (as indicated in military documentation including letters of reprimand and counseling), substance abuse (with referral to substance abuse classes in the military), mental health symptoms (with a diagnosis of adjustment disorder with depressed mood per military treatment records), and reported changes in social behaviors. In addition, after her claimed MST, she was subsequently diagnosed with a sexually transmitted disease per military treatment records. After her discharge from the service, she had a documented suicide attempt with inpatient psychiatric treatment in 2004, with additional subsequent documentation of VA mental health treatment. The VA examiner also noted that the Veteran described a continued history of job, relationship, substance, legal, and mental health-related difficulties after leaving active service, and she indicated that this was related to her MST and/or subsequent PTSD symptoms. Thus, the August 2012 VA examiner found that, based on the Veteran's military records, post-military VA treatment records, markers that supported the possibility of MST, and her presentation at the examination (which was consistent with PTSD), the Veteran had a current diagnosis of PTSD and that such PTSD was at least as likely as not incurred in or caused by the claimed MST. The Board observes that, in support of her medical opinion, the August 2012 VA examiner specifically cited to evidence contained in the service treatment records and military personnel records added to the claims file in February 2012. Additionally, the record indicates these service department documents had not been associated with the claims file prior to February 2012. In a September 2012 rating decision, the AOJ granted service connection for PTSD, effective May 18, 2011, based on the August 2012 VA examination and opinion. The RO based the May 18, 2011, effective date for the award of service connection for PTSD on the date VA received the Veteran's most recent service connection claim. The service department records associated with the claims file in February 2012 were relevant to the issue on appeal, as they contained evidence of the Veteran's in-service psychiatric condition, as well as the Veteran's deterioration in her work performance. Moreover, the eventual award of service connection in the September 2012 rating decision was based on the August 2012 VA examination and opinion, which relied, at least in part, on the newly-received service department records added to the claims file subsequent to the initial service connection denial. Consequently, such award should have been made effective on the date VA received the Veteran's original claim. 38 C.F.R. § 3.156(c)(1). Accordingly, the Board finds an effective date of November 27, 2002, for the award of service connection for PTSD is warranted based on the date of receipt of the Veteran's original service connection claim for PTSD. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as the Veteran did not file a claim for such disability prior to such date, and does not contend that she did, an effective date prior to November 27, 2002, is not warranted. M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.