Citation Nr: A21020133 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 190828-25097 DATE: December 16, 2021 REMANDED Entitlement to an effective date prior to February 28, 2019, for the grant of service connection for posttraumatic stress disorder (PTSD) with persistent depressive disorder is remanded. REASONS FOR REMAND The Veteran had active service from May 1989 to November 1997. In April 2020, the Board denied the Veteran's appeal concerning an earlier effective date. A March 2021 Court order vacated the Board's decision, and adopted a Joint Motion Remand (JMR) for reconsideration of the Veteran's claim and it has since been returned to the Board for further review. The Board notes that while the Veteran was previously represented by an attorney, additional clarification was sought and in September 2021, she elected to proceed pro se. Entitlement to an effective date prior to February 28, 2019, for the grant of service connection for posttraumatic stress disorder (PTSD) with persistent depressive disorder is remanded. Review of the record reveals that remand is required in order to correct a duty to assist error that occurred prior to the June 2019 rating decision on appeal. Specifically, remand is required to retrieve outstanding records that are directly relevant to the claim. Historically, On December 10, 2015, the Veteran filed a VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension. On November 2, 2016, VA received a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, seeking entitlement to service connection for PTSD based on sexual assault. A February 2017 rating decision denied the Veteran's claim for entitlement to service connection for PTSD, but the Veteran did not file a timely notice of disagreement. On May 14, 2019, the Agency of Original Jurisdiction (AOJ) sent the Veteran a notice letter indicating that it was reviewing her previously denied claim to "determine if any evidence was overlooked." Upon review, and after a VA examination, a June 2019 rating decision granted entitlement to service connection for PTSD and assigned a 70 percent rating, effective "February 28, 2019, the date of the request to review the previous denial." In April 2020, the Board denied the Veteran's claim for an earlier effective date, which was appealed to the Court of Appeals for Veterans Claims (Court), and ultimately returned to the Board. Essentially, it is argued that VA did not properly adjudicate claims of PTSD resulting from military sexual trauma (MST) during fiscal year 2017 and since VA undertook an administrative review of the previously denied initial claim, then the proper effective date should be the date of the original claim. When a benefit is granted based on an administrative action, then determination of retroactive effective dates and awards under 38 U.S.C. § 5110(g) is raised. See McCay v. Brown, 106 F.3d 1577, 1580 (1997) (finding that the VA may review a previously decided claim and pay retroactive benefits pursuant to 38 U.S.C. § 5110(g) (citing VA OGC Advisory Opinion 28-90 at 6 (May 1, 1990)). Accordingly, the Board must consider the applicability of 38 U.S.C. § 5110(g). A "liberalizing law" is "one which brought about a substantive change in the law creating a new and different entitlement to a benefit." Spencer v. Brown, 17 F.3d 368, 372 (Fed. Cir.1994). Section 5110(g) imposes an additional requirement concerning effective dates. According to the statutory provision 5110(g): [W]here compensation ... is awarded ... pursuant to any Act or administrative issue, the effective date of such award ... shall be fixed in accordance with the facts found [but] shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award ... be retroactive for more than one year from the date of application therefore or the date of administrative determination of entitlement, whichever is earlier. In McCay, the Federal Circuit explained: The legislative history surrounding the enactment of section 5110(g) makes clear that the very purpose behind that portion of the statute which allows the VA to award retroactive benefits based on the date of administrative determination of entitlement was to allow the VA to identify potential beneficiaries and apply the provisions of liberalized laws without the necessity of a potential beneficiary filing a post-enactment claim. S. Rep. No. 2042, 87th Cong., 2d Sess. 2 (1962), reprinted in 1962 U.S.C.C.A.N. 3260, 3260-61. 106 F. 3d at 1580. The Federal Circuit held that VA may review a previously decided claim and pay retroactive benefits pursuant to 38 U.S.C. § 5110(g) because the statute was intended to "obviate the necessity of a potential beneficiary filing a specific claim for the new benefit and would instead permit the Veterans' Administration, where feasible, to identify such beneficiaries and apply the provisions of the liberalized law and administrative issue on its own initiative." Id. See also Kennedy v. Wilkie, 33 Vet. App. 114, (2020) (discussing 38 U.S.C. § 5110(g) and 38 C.F.R. § 3.114(a) as to what qualifies as a VA issue). The result is that if the application for benefits is made after the date of the liberalizing issue, the effective date is one year before the date of claim (but not before the date of the liberalizing law or issue). McCay, 106 F.3d at 1581 (citing 38 C.F.R. § 3.114(a)(3) (1994)). Significantly, the AOJ's second review of the Veteran's claim was mandated as part of an investigation that discovered VA's failure to properly apply liberalized standards for MST cases. The agreement between OIG and the Under Secretary was to review cases and take "corrective action" on any improperly denied claims. Here, more background information is required as to who exactly ordered the original MST review. Therefore, remand is required for that information to be associated with the file in order to properly consider whether the review can be interpreted as a "VA issue" question under Kennedy. Alternately, the AOJ may see fit to consider the issue of whether there was clear and unmistakable error (CUE) in the original February 2017 rating decision denying entitlement to service connection for PTSD. Such an action would resolve this issue. The matter is REMANDED for the following action: (Continued on the next page) The AOJ should contact the appropriate records repository in order to associate any documents regarding who (or what organization specifically) initially instituted the review of MST claims during fiscal year 2017. All attempts to locate these records should be associated with the claims file and the Veteran should be notified accordingly. If/when the records are located, the AOJ should prepare a summary and/or memorandum describing its findings. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. 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.