Citation Nr: 21007137 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 11-19 264 DATE: February 8, 2021 ORDER Entitlement to an effective date earlier than August 15, 1986, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT 1. The Veteran submitted a claim for a psychiatric disability on May 22, 1972. 2. The nexus element for establishing service connection for PTSD was not received until after August 15, 1986. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to August 15, 1986 for service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from August 1968 to March 1970. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which granted service connection for PTSD and assigned a 50 percent rating, effective on April 27, 1989. In a March 2010 rating decision, the RO increased the rating for PTSD to 70 percent, effective on April 27, 1989, and to 100 percent, effective on October 5, 1989. In May 2014, the Board denied the issue of entitlement to an effective date earlier than April 27, 1989, for the grant of service connection for PTSD and remanded the issue of entitlement to a rating in excess of 70 percent for PTSD for the period prior to October 5, 1989 for additional development. The Veteran appealed the May 2014 denial of an effective date earlier than April 27, 1989, for the grant of service connection for PTSD to the United States Court of Appeals for Veterans Claims (Court). In a September 2016 Memorandum Decision, the Court set aside the May 2014 Board decision denying an effective date earlier than April 27, 1989 for the grant of service connection for PTSD and remanded the issue back to the Board for action in compliance with the Memorandum Decision. The Court noted that the Board in its May 2014 decision rejected the Veteran’s contentions that he was entitled to an earlier effective date for PTSD under either 38 C.F.R. § 3.156(b) or (c) as well as his contention that the RO erred in failing to treat his May 1972 claim as one for compensation benefits, rather than merely non-service-connected pension benefits. In December 2017, the Board remanded the issues for further development. In a March 2019 rating decision the RO determined that an earlier effective date of August 15, 1986 was warranted for service connection for PTSD rated as 70 percent disabling, which is the date the Veteran’s underlying claim of service connection for a nervous condition was received. In October 2019, the Board denied the issue of entitlement to an effective date earlier than August 15, 1986, for the grant of service connection for PTSD and granted the issue of entitlement to a rating of 70 percent for PTSD from August 15, 1986. The Board found that an earlier effective date under 38 C.F.R. § 3.156(b) was moot as the RO, in the March 2019 rating decision, had determined that new and material evidence was received within one year of the July 1988 rating decision and granted an effective date of August 15, 1986. The Board found that the provisions of 38 C.F.R. § 3.156(c)(2) controlled in this case, rendering an earlier effective under 38 C.F.R. § 3.156(c) moot as well, as the Veteran did not provide sufficient information to allow the RO to identify and seek information from Center for Unit Records Research (CURR) in 1972. Lastly, the Board found that there was nothing in the May 1972 application for benefits that made it clear the Veteran intended to apply for service connection for a psychiatric disorder. The Veteran appealed the October 2019 denial of an effective date earlier than August 15, 1986, for the grant of service connection for PTSD to the Court. In a July 2020 Joint Motion for Partial Remand (JMPR) the parties agreed to remand and vacate the portion of the Board’s October 2019 decision that denied an earlier effective date for PTSD. The Court, in an August 2020 order, granted the JMPR, vacating this portion of the Board’s decision and remanding the matter to the Board for further development consistent with the terms of the JMPR. The Court noted that the Board erred when it only addressed the information on the first two pages of Veteran’s May 1972 application for benefits, but overlooked the final two pages of that application, which contained Veteran’s responses regarding his nervous condition in the section of the application that only needed to be completed if the applicant was “claiming compensation for a disability incurred in service.” Entitlement to an effective date earlier than August 15, 1986, for the grant of service connection for PTSD The Veteran seeks an effective date earlier than August 15, 1986 for the grant of service connection for PTSD. Specially, the Veteran has advanced the argument that a 1972 claim was unadjudicated for purposes of compensation benefits. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be 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. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a Veteran or his representative, may be considered an informal claim. An informal claim must identify the benefit sought. If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. The above noted effective date and claim regulations were revised or removed effective March 24, 2015. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). However, the revisions are only effective for claims filed on or after March 24, 2015, and do not apply to claims pending as of that date. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014). The pertinent facts show that on May 22, 1972, the Veteran’s VA Form 21-526, Application for Compensation or Pension, was received whereby the Veteran indicated that he very nervous, did not remember most things, and forgot everything easily. Notably, the last two pages of the document indicated that “Items 25, 26, and 27 need NOT be completed unless you are now claiming compensation for a disability that incurred in service.” While the Veteran did not complete item 25, he did fill out items 26 and 27. See May 1972 Application and September 2015 Service Treatment Records. In June 1972, VA sent a letter to the Veteran advising him to submit medical evidence showing that he was permanently and totally disabled and unable to engage in a gainful occupation. The RO in an October 1972 rating decision denied the Veteran’s claim for permanent and total rating for pension purposes. VA in a November 1972 letter informed the Veteran that his disability was not sufficient to permanently prevent him from engaging in substantially gainful employment and advised the Veteran of his appellate rights. Generally, VA must develop all issues raised upon a liberal and sympathetic reading of a claim. See Ingram v. Nicholson, 21 Vet. App. 232, 256 (2007). Moreover, a claim by a Veteran for pension “may be” treated as a simultaneous claim for service connection and vice versa. 38 C.F.R. § 3.151(a). Determining whether a claim for pension is a simultaneous claim for service connection depends on the contents of the application for benefits and the supporting evidence submitted with the application. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997). In Stewart v. Brown, the United States Court of Appeals for Veterans Claims explained that the phrase “may be considered” in 38 C.F.R. § 3.151(a) is discretionary rather than mandatory, and further clarified that VA should consider a veteran’s claim for pension as a claim for compensation where VA is on notice that the appellant has a well-supported claim and might be eligible for either benefit. Id. at 18-19. In Stewart, the Court considered factors, such as did the claimant have at least some understanding of the application process for disability compensation. Id. at 19-20. In this case, on the one hand, the Veteran did not make any assertions that would lead VA to believe he was claiming a “nervous condition” related to any incident of service. On the other hand, the Veteran did fill out “parts” of the form expressly noted to “NOT be completed unless you are now claiming compensation for a disability that incurred in service.” Very likely, the Veteran did not intend on filing for service connection compensation at the time and in error filled out more parts of the claims form than was “required.” In fact, what further bolsters this likelihood is that in August 1986 when the Veteran filed a claim for a nervous condition again, he, for the first time, indicated that he believed his nervous condition was related to his Reserves service in 1984. This 1986 claim was very different than the prior 1972 claim in that the Veteran identified a contended link to service. All of these factors leads to the likely conclusion that prior to 1986, the Veteran did not have the “intent” on pursuing a compensation claim, but merely a pension claim. Even so, with a sympathetic reading, the Board will presume the May 1972 application was a claim for service connection compensation for purposes of considering the earlier effective date inquiry here. Presuming a May 1972 “date of claim,” the Board still finds no basis to award an earlier effective date of his grant for service connection. As noted above, the “date of claim” is only half of the inquiry in deciding the appropriate effective date of an award. The Board must also consider the date in which “entitlement arose” for the benefit sought. In this case, there is no evidence to support that entitlement arose prior to the currently assigned August 1986 effective date. See 38 C.F.R. § 3.400 (effective dates, in general, shall be the date of receipt of the claim or the date entitlement arose, whichever is later). Establishing service connection for PTSD requires evidence of a current diagnosis of PTSD, credible supporting evidence that the claimed in-service stressor actually occurred, and medical evidence of a causal nexus between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). In July 1972, the Veteran was diagnosed with hysterical neurosis. See July 1972 VA Examination. In September 1987, the Veteran was diagnosed with dysthymic disorder. See September 1987 Medical Treatment Records. In April 1992, the Veteran was diagnosed with generalized anxiety with PTSD features. In August 2018, a VA examiner opined that the September 1972 diagnosis of hysterical neurosis was an early manifestation of/related to the currently diagnosed PTSD. See August 2018 VA Examination. Aside from the lack of a PTSD diagnosis specifically prior to 1986, there was also no medical evidence of a causal nexus between the Veteran’s psychiatric symptomatology (however diagnosed) and any claimed in-service stressor/incident until well after the Veteran’s current effective date of August 15, 1986. In April 2005, a VA examiner opined that the Veteran’s psychiatric disability was not due to service. In August 2008, a VA examiner opined that the Veteran’s PTSD was at least as likely as not caused by or the result of his military service. This is the earliest medical evidence of a nexus between the Veteran’s PTSD and service. It is important to note that the RO attempted to obtain additional information regarding the Veteran’s claim in 1972, but the Veteran did not respond. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) (holding the duty to assist is not a one-way street). Again, it was not until the Veteran submitted a new claim on August 15, 1986, that he even contended that his nervous condition began in service. At that time, he believed his nervous condition began during Reservice service in 1984. Prior to this statement, the VA had absolutely nothing to go on to even research or substantiate an in-service stressor. Even on an extremely liberal reading of the record, the Veteran’s military records alone did not, prior to 1986, indicate he was a combat veteran or that he had incurred some in-service stressor responsible for PTSD. A diagnosis of a mental disorder, for VA service connection purposes, must conform to the Psychiatric Diagnostic standards of the time (currently, the DSM-5) and for PTSD specifically, requires a confirmed in-service stressor. See 38 C.F.R. § 4.125. Merely filing a claim is not equivalent to establishing entitlement to the benefit sought and, in this case, even under the most liberal reading of the record, entitlement to the benefit simply did not arise prior to the current effective date of August 5, 1986. Given the procedural history as outlined above, the Board finds that effective date prior to August 15, 1986 is not warranted. The applicable law mandates that an effective date (for a claim received more than one year after discharge) will be the date VA receives the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (emphasis added). Even if the Board concedes the Veteran submitted a psychiatric claim for “compensation” purposes in May 1972, entitlement to the benefit is not shown in the record until well after August 15, 1986. That is, the record contained no evidence of a specific in-service stressor, no evidence of a PTSD diagnosis, and no evidence of a nexus to service prior to August 15, 1986 (and indeed, well after such date). In fact, the Veteran did not even claim his nervous condition was due to service until an August 15, 1986, claim where, for the first time, he stated his condition was due to an event that occurred during his Reserves service in 1984. Accordingly, entitlement to an effective date prior to August 15, 1986 for the award of service connection for PTSD is not warranted. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b). Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.