Citation Nr: 21028789 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 19-21 359 DATE: May 12, 2021 ORDER Entitlement to an effective date of March 1, 1990 for the grant of service connection for a generalized anxiety disorder is granted. Entitlement to service connection for post-traumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. On March 1, 1990, the RO received the Veteran's original claim of entitlement to service connection for an acquired psychiatric disorder (characterized as depression-anxiety) and denied the claim in a final rating decision issued in August 1990. 2. In December 2017, the RO received the Veteran's claim to reopen the previously denied claim for service connection for a generalized anxiety disorder. 3. A new service personnel record was received in March 2018, that was available but not of record at the time of the August 1990 decision. 4. The claim for service connection for a generalized anxiety disorder was reconsidered and granted in an October 2018 rating decision, with an effective date of December 6, 2017. 5. The evidence of record shows that the ultimate grant of service connection in October 2018 relied, in part, upon the new service personnel record received in March 2018. 6. The record does not contain a valid diagnosis of PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders criteria. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 1, 1990 for the grant of service connection for a generalized anxiety disorder have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(c), 3.400. 2. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 11110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125, 4.130. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1982 to January 1990. In February 2020, the Board denied entitlement to an effective date earlier than December 6, 2017 for the grant of service connection for generalized anxiety disorder. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In December 2020, pursuant to a joint motion for partial remand (JMPR), the Court vacated the February 2020 denial as to the portion of the February 2020 decision that denied entitlement to an effective date earlier than December 6, 2017 for the grant of service connection for a generalized anxiety disorder. The Court appeal as to the issue of an increased rating for generalized anxiety disorder was dismissed per the parties' request. The appeal is once again before the Board for consideration. Earlier Effective Date The assignment of an effective date for an award of service connection is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation 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); 38 C.F.R. § 3.400. However, newly discovered service records can serve as a basis for providing an earlier effective date under 38 C.F.R. § 3.156(c). That is, 38 C.F.R. § 3.156(c)(1) provides that, 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, notwithstanding paragraph (a) of the same section (which defines new and material evidence). In this way, when 38 C.F.R. § 3.156(c) is invoked, "the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted." Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008); see also Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011). Entitlement to an Effective Date Prior to December 6, 2017 for the Grant of Service Connection for a Generalized Anxiety Disorder On March 1, 1990, the Veteran filed her original claim for service connection for "depression-anxiety," which she contends onset in 1989. The Veteran was afforded a VA examination in June 1990. The examiner opined that the Veteran's anxiety disorder preexisted service and that aggravation was not shown. Notably, the examiner noted that he did not have access to the Veteran's claims file. In an August 1990 rating decision, the RO denied service connection for an acquired psychiatric disorder, characterized as "obsessive compulsive neurosis with depression and anxiety." The RO noted that the Veteran's generalized anxiety and depression preexisted service and that aggravation was not shown. In the evidence section of the decision, the RO only listed that the Veteran's service medical records were reviewed. The Veteran was notified of the rating decision in August 1990. She did not submit a notice of disagreement or submit new and material evidence within one year of the decision. Thus, the August 1990 decision became final. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. On December 6, 2017, the Veteran sought to reopen her claim for a psychiatric condition. See December 2017 VA Form 21-0966. In March 2018, the Veteran's personnel records were associated with the electronic claims file. Also, the Veteran reported that she times experienced military sexual trauma in service and that the change in her performance was attributed to such trauma. See March 2018 Statement in Support of Claim. The Veteran was afforded a VA mental disorders (other than PTSD and eating disorders) DBQ in August 2018, at which time the examiner noted diagnoses of PTSD; depressive disorder, not otherwise specified; and alcohol use disorder, severe. The examiner opined that it was at least as likely as not that the Veteran's anxiety disorder began during service, noting that the Veteran took Prozac while in service and that her STRs described that multiple appointments where she described feelings of anxiety. A separate October 2018 DBQ medical opinion referenced that the Veteran was examined via approved video telehealth and that a review of the claims file was performed. The examiner opined that the Veteran's claimed condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner reasoned that the Veteran reported that she was placed in two specific situations that exposed her to being sexually traumatized, to include an incident in 1985 and another in 1985. The examiner also noted that the Veteran's records support that her deterioration began in or around 1987, which was consistent with when her substance abuse began. The examiner also noted that it was at least as likely as not that the Veteran's anxiety was exacerbated by the culmination of several events during the time that she was in service, to include that of sexual traumatic experiences, the deteriorating and tumultuous relationship with her husband, and her drug use disorder. The examiner further noted that the effect that each of these events contributed to her current anxiety cannot be separated, but that it was likely that it was cumulative and created a toll on her mental health functioning. Again, the Veteran and his representative have contended that an earlier effective date of March 1, 1990 is warranted for the award of service connection for a generalized anxiety disorder, based on the receipt of additional, relevant service personnel records. In Emerson v. McDonald, the Court further clarified that VA must reconsider a claim when relevant service records are received any time after the original denial. 28 Vet. App. 200 (2016). In Emerson, The Court found that the plain language of § 3.156(c)(1) required VA to reconsider the appellant's original claim even though it had been later granted. Here, the Veteran's claim for generalized anxiety disorder was originally denied because the RO found there was insufficient evidence to verify that the preexisting condition underwent aggravation during or as a result of service. Although service connection for a generalized anxiety disorder was later granted, VA is still obligated to reconsider the original claim when relevant service records are received. In this case, new service personnel records existed but had not been associated with the claims file at the time of the earlier rating decision. The personnel records reflect that the Veteran was given high marks and commendations for most of her military career. See January 1985, November 1987, and April 1989 performance reports. The Veteran then began to receive poor performance marks and failed to show up for her duties. See May 1989 letter of admonishment; November 1989 performance report. Finally, she was honorably discharged due to a positive amphetamine test. See November 1989 administrative discharge action. Service connection for a generalized anxiety disorder was subsequently granted, based in part on these records. Resolving reasonable doubt in the Veteran's favor, the Board finds that the service personnel records demonstrate that the Veteran's generalized anxiety disorder was aggravated beyond the normal progression due to in-service events. Under the pre-amendment version of 38 C.F.R. § 3.156(c), the Veteran's claim must be reconsidered from the date of the initial claim for service connection irrespective of whether the personnel documents were identifiable by the statements or evidence provided by the Veteran at that time. Consequently, while the Board may find that VA did not have enough specific information to locate the service personnel records prior to her reports of military sexual trauma, that does not preclude the claim from being reconsidered under the former 38 C.F.R. § 3.156 (c)(1), for an earlier effective date. In performing this reconsideration pursuant to 38 C.F.R. § 3.156(c), the Board finds that the Veteran's generalized anxiety disorder was aggravated beyond its natural progression, as supported by the October 2018 VA medical opinion following a review of the service personnel records. As such, the Board finds that an earlier effective date of March 1, 1990 for the grant of service connection for a generalized anxiety disorder is warranted. 38 C.F.R. §§ 3.156, 3.400. 2. Entitlement to service connection for PTSD. Service connection for PTSD similarly requires (1) medical evidence establishing a diagnosis of the disorder, (2) credible supporting evidence that the claimed in-service stressor occurred, and (2) a link established by medical evidence between the current symptoms and an in-service stressor. 38 C.F.R. § 3.304 (f). Review of the record fails to show a diagnosis of PTSD that meets the regulatory criteria that it conform to the appropriate American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM). 38 C.F.R. § 4.125. See November 2020 examination. In the absence of proof of current disability, a claim of service connection may not be granted. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There has been no finding of a current VA disability proximate to or during the pendency of the Veteran's claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Absent a valid diagnosis for VA purposes, PTSD cannot be granted. Further, the Board notes that the Veteran is service connected for generalized anxiety disorder and her psychiatric symptoms are all being compensated under that diagnosis. See Mittleider v. West, 11 Vet.App. 181, 182 (1998) (holding that when claimant has both service-connected and non-service-connected disabilities, Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson, 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.