Citation Nr: 21012531 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 191120-44409 DATE: March 4, 2021 ORDER The claim of entitlement to an effective date prior to June 25, 2013, for the grant of service connection for a psychiatric disorder is granted. FINDINGS OF FACT 1. On August 17, 2004, the Veteran filed an original claim for service connection for a psychiatric disorder. 2. A January 2011 Board decision denied the claim of entitlement to service connection for a psychiatric disorder. 3. A claim to reopen the claim for entitlement to service connection for a psychiatric disorder was received in June 2013. 4. A February 2015 rating decision granted the claim of entitlement to service connection for a psychiatric disorder. 5. The grant of service connection was based on relevant service department records, particularly Chemical Biological Radiological Nuclear and Explosives (CBRNE) testing records, that existed but had not been associated with the claims file when VA first decided the claim of entitlement to service connection for a psychiatric disorder. CONCLUSION OF LAW The criteria for entitlement to an effective date of August 17, 2004, for the award of service connection for generalized anxiety disorder have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION On August 23, 2017, the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA) was signed into law. This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program. This decision has been written consistent with the new AMA framework. The Veteran had honorable active duty service with the United States Army from June 1962 to June 1965. The Veteran selected the Higher-Level Review Lane when he submitted the RAMP election form. Accordingly, the November 2018 RAMP rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this RAMP rating decision to the Board and requested direct review of the evidence considered by the Board of Veterans Appeals. In a January 2020 decision, the Board denied the claim of entitlement to an earlier effective date for the grant of service connection for a psychiatric disorder. In September 2020, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for remand (JMR). In the JMR, the parties agreed to vacate the Board’s January 2020 decision that denied the claim on appeal. The JMPR was incorporated by reference in a Court order dated September 2020. Entitlement to an effective date prior to June 25, 2013, for the grant of service connection for a psychiatric disorder. Generally, the effective date of an award based on an original claim for compensation benefits or a reopened claim for service connection, if received more than one year after the claimant’s discharge from service, 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 (b)(2)(i). The effective date, “shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110 (a). An exception to the general effective date rule for reopened claims, however, is if at any time after VA issues a decision on a claim, if VA 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. 38C.F.R. §3.156 (c). Such records include, but are not limited to: service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of § 3.156(c) are met; additional service records forwarded by the DoD or the service department to VA any time after VA’s original request for service records; and declassified records that could not have been obtained because the records were classified when VA decided the claim. Id. However, § 3.156(c) does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. An award made based all or in part on the records identified by 38 C.F.R. § 3.156 (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 applicable to the previously decided claim. 38 C.F.R. § 3.156 (c)(3). The Veteran filed his original claim for service connection for a psychiatric disorder on August 17, 2004. The claim was denied in a January 2005 rating decision and the Veteran appealed. During the appeal period, the Veteran submitted several statements regarding his exposure to biochemicals during service. In December 2004, he reported that he participated in an experimental drug program during service and that he was given over 100 injections. He stated that he was initially told that he would be stationed in Maryland for the program, but he remained at Fort Benning. With this statement, he submitted a military personnel record showing that he completed chemical, biological, and radiological (CBR) training during service. Based on the Veteran’s reports, the AOJ attempted to verify the Veteran’s participation in Shipboard Hazard and Defense (SHAD)/Project 112, a chemical and biological warfare test program. A September 2005 response indicated that the DoD database did not include the Veteran. The AOJ continued the denial in an August 2005 rating decision. The Veteran perfected an appeal and the Board denied the claim in a January 2011 decision. The Veteran filed a claim to reopen in June 2013. He continued to report that he was given many injections during service and that he was involved in the CBR program at Fort Benning. Based on the Veteran’s reports, the AOJ requested information from the DoD to verify the Veteran’s participation in CBRNE testing. A response was provided in September 2014. Following a review of the DoD database, it was determined that it was probable that the Veteran was exposed to biochemical agents during service. The large package of submitted material reviewed revealed that the Veteran completed CBR training in September 1964 and that he was on temporary duty travel in September 1964, possibly in Maryland where the majority of CBR research and testing occurred. Also, the Veteran trained on Fort Leonard Wood where CBR training was known to take place and where the DoD Joint Chemical School is located. It was also noted that the tests described by the Veteran continued to take place during the time that the Veteran was enlisted. Based on the DoD materials, it was concluded that it was probable that the Veteran was exposed to biochemical agents at Fort Leonard Wood and Fort Benning. The February 2015 rating decision that granted service connection for a psychiatric disorder was based, at least in part, on the September 2014 response from the DoD, which confirmed the Veteran’s probable exposure to biochemical agents during his active duty service. The DoD response indicated that a large package of materials was used to determine the likelihood of the Veteran’s in-service exposure. The Board finds that there was sufficient evidence for VA to identify and verify the Veteran’s claimed exposure prior to June 25, 2013, and the provisions of 38 C.F.R. § 3.156 (c) apply in this case. Specifically, the information used to confirm the Veteran’s in-service exposure was present during the Veteran’s initial appeal period when he filed his original claim for service connection. The details provided by the Veteran in December 2004, are the same details used by the AOJ when it submitted a request to the DoD for confirmation of the exposure. Moreover, the September 2014 DoD response that it was probable that the Veteran was exposed to biochemical agents was based on service department records. Although the September 2014 response did not clearly list each piece of evidence used to make the determination, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the records existed at the time of the original adjudication in January 2005. Accordingly, the finality of the previous decisions is invalidated, and the original service connection claim for a psychiatric disorder is readjudicated in this Board decision. See 38 C.F.R. § 3.156 (c). The record reflects that the Veteran manifested symptoms of his psychiatric disorder prior to filing his original claim for service connection for a psychiatric disorder in August 2004. Notably, private treatment records dated as early as June 1990 show a diagnosis of generalized anxiety. Further, the Board has not identified any document and/or statement from the Veteran which could reasonably be construed as a claim, either formal or informal, for service connection for a generalized anxiety disorder prior to August 17, 2004. The Veteran’s May 1990 formal claim was a claim for nonservice-connected pension. Thus, August 17, 2004 is the earliest effective date that can be assigned for service connection for the Veteran’s psychiatric disorder 38 C.F.R. § 3.156 (c)(3). The Veteran’s psychiatric disorder has been present throughout the course of this claim. The Veteran provided sufficient information for VA to verify his exposure prior to the January 2005 rating decision initially denying his claim. The grant of service connection for his psychiatric disorder is based in part upon the details of his exposure contained in these relevant records. Thus, an earlier effective date of August 17, 2004, is warranted for the grant of service connection for his psychiatric disorder. 38 C.F.R. §§ 3.156 (c), 3.400. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. McKinley, 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.