Citation Nr: 21022609 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 17-27 218 DATE: April 16, 2021 ORDER Entitlement to an earlier effective date of January 1, 1994, and no earlier, for the initial grant of service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran's initial claim of entitlement to service connection for PTSD was received on December 2, 1993 and his claim was denied by a June 1994 rating decision. 2. The subsequent grant of service connection for a PTSD disability was based, in part, on receipt of additional relevant service treatment records documenting a history of military sexual trauma (MST); these records were associated with the Veteran's claims file after the June 1994 rating decision, and the documents existed at the time of the prior denial of service connection. 3. The Veteran had a PTSD disorder related to service since at least January 1, 1994, which is the date following his separation from active duty service. CONCLUSION OF LAW The criteria for an effective date of January 1, 1994, and no earlier, for the grant of service connection for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1988 to July 1988, and from April 1991 to December 1993. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2016 rating decision (RD) issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a hearing was held in February 2021 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to an earlier effective date for grant of service connection for posttraumatic stress disorder (PTSD), prior to September 15, 2015 By way of history, a June 1994 rating decision denied service connection for a PTSD disability. The Veteran did not file a notice of disagreement or submit new and material evidence within one year of that decision. The Veteran submitted another claim for service connection for a PTSD disability on September 15, 2015, and this claim was eventually granted by a rating decision issued in February 2017, assigning a 50 percent disability rating effective September 15, 2015. The Veteran contends that an earlier effective date is warranted for the grant of service connection for PTSD. Specifically, during the February 2021 Board hearing, the Veteran’s representative noted that new service treatment records (STRs) relevant to the claim for service connection for PTSD had been associated with the claims file since the June 1994 rating decision and vitiated the finality of that decision pursuant to 38 C.F.R. § 3.156(c). Effective dates for awards of benefits, including those benefits awarded because of new and material evidence, are generally governed by 38 U.S.C. § 5110. See Akers v. Shinseki, 673 F.3d 1352, 1357 (Fed. Cir. 2012). The statute provides that the effective date for an award of Veterans benefits based on a reopened claim after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). The Secretary promulgated a regulation, 38 C.F.R. § 3.400, which implements § 5110(a), and similarly provides that the effective date for an award of benefits shall "be the date of receipt of the claim or the date entitlement arose, whichever is the later." Section 3.156(c) is an exception to the general rule in § 3.156(a). Section 3.156(c) provides for earlier effective dates in certain conditions. In contrast to the general rule, § 3.156(c) requires the VA to reconsider, rather than reopen, a veteran's claim when relevant service department records are newly associated with the veteran's claims file, whether or not they are "new and material" under § 3.156(a). 38 C.F.R. § 3.156 (c)(1) (noting that § 3.156(c) applies "notwithstanding paragraph (a)"). In other words, § 3.156(c) seeks to place a veteran in the position he would have been had the VA been able to consider the relevant service department record at the time of initial adjudication of the claim. Section 3.156(c)(1) defines the circumstances under which the VA must reconsider a veteran's claim for benefits based on newly associated service department records: [A]t 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.... 38 C.F.R. § 3.156 (c)(1). Section (c)(2) provides: Paragraph (c)(1) of this section 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, JSRRC, or from any other official source. 38 C.F.R. § 3.156 (c)(2). 38 C.F.R. § 3.156 (c) requires a retrospective disability rating inquiry when (1) the VA rendered a decision denying a claim before receiving certain service department records and (2) benefits are later granted based on those records, in whole or in part. Essentially, the Board must determine whether the additional service department records were relevant, such that the initial agency decision should have been reconsidered. It is noted that case law has evolved significantly regarding 38 C.F.R. § 3.156(c). The case most applicable to addressing the issue of relevance is the recent Federal Circuit holding in Kisnor v. Shulkin, 869 F.3d 1360 (Fed. Cir. January 2018). In Kisnor, the Federal Circuit acknowledged that § 3.156(c)(1) is ambiguous as to the meaning of the term "relevant," adding that the regulation is vague as to the scope of the word, and canons of construction do not reveal its meaning. Significantly, § 3.156(c)(1) does not specify whether "relevant" records are those casting doubt on the agency's prior rating decision, those relating to the veteran's claim more broadly, or some other standard. Ultimately, the Federal Circuit found that the Board's ruling was based upon the proposition that, as used in §3.156(c)(1), "relevant" means noncumulative and pertinent to the matter at issue in the case, which the Federal Circuit did not find to be either a plainly erroneous or inconsistent interpretation within the VA's regulatory framework. The Board finds that the new service treatment records added to the Veteran’s claims file subsequent to the June 1994 rating decision were relevant to his claim for service connection for PTSD, as they document MST. See August 1992 Outpatient Psychological Evaluation (“…Hx of sexual assault…”); see also June 1994 RD (denying service connection due to “no evidence of record to corroborate the Veteran’s history of stressful events.”). Given that new service records were associated with the claims file after the June 1994 rating decision, that rating decision did become final pursuant to 38 C.F.R. § 3.156(c). Accordingly, the Board finds an earlier effective date is warranted under 38 C.F.R.§ 3.156(c) in this case because additional relevant official service department records were associated with the claims file after the Veteran's original claim for service connection was denied in June 1994. As the claim is being reconsidered, not reopened, the effective date is affixed by operation of 38 C.F.R. § 3.400 (b)(2)(i) for entitlement to service connection arising on a direct basis. The effective date to be assigned is the day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Id. The Veteran separated from active duty service on December 31, 1993 and submitted his initial claim on December 2, 1993. Therefore, the appropriate effective date is January 1, 1994, the day after the Veteran's discharge from military service. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.