Citation Nr: 21029274 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-52 669 DATE: May 13, 2021 ORDER Entitlement to an effective date earlier than June 16, 2014, for the award of service connection for a psychiatric disability is denied. FINDING OF FACT There was no pending claim prior to June 16, 2014, and the April 2012 rating decision was final. CONCLUSION OF LAW The criteria for an effective date earlier than June 15, 2014, for the award of service connection for a psychiatric disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1998 to October 2003. This matter was previously before the Board in April 2020, when the claim was denied. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court), and in December 2020, the matter was vacated and remanded to the Board pursuant to a Joint Motion for Remand (JMR). In November 2011, VA received a claim for service connection for a psychiatric disorder. The claim was denied in an April 2012 rating decision. The rating decision reports that VA treatment records dated to March 27, 2012, were considered. The Veteran did not appeal the decision. In June 2014, the Veteran filed an application to reopen the claim for service connection. The claim was ultimately granted in a June 2016 rating decision, which assigned an effective date of June 16, 2014, the date of receipt of the June 2014 claim. The Veteran contends that the effective date should be the date of receipt of the November 2011 claim. Generally, the effective date of an award based on an original claim for compensation benefits, 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). The effective date of an award of disability compensation based on new and material evidence (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). However, new and material evidence received prior to the expiration of the appeal period (one year after notice of the decision is sent) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b). The definition of the phrase new and material evidence in § 3.156(a) is the appropriate definition to use when applying § 3.156(b). See Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), held that for purposes of finality VA treatment records dated during the appeal period are consider in VA's possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA's duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. The Board has reviewed the evidence dated prior to June 16, 2014, but finds no evidence that could be interpreted as a pending claim for a psychiatric disability. The Veteran did not file a claim for service connection for a psychiatric disorder or an application to reopen the claim for service connection for a psychiatric disorder between the April 2012 rating decision and June 2014 application to reopen, and although the record includes VA treatment records dated between the issuance of the April 2012 rating decision and June 16, 2014, the records do not reveal any intent to file a claim and thus cannot be interpreted as a pending claim. Furthermore, the Board finds that the April 2012 rating decision was final. Initially, the Board finds 38 C.F.R. § 3.156(b) is not applicable. The Board acknowledges that VA treatment records were associated with the record in March 2013, which include "new" medical records dated in October, November, and December 2012. The records are not material, however. Notably, the only potentially relevant information is found in a November 2012 medical record that indicates that alcohol and depression screening were performed. However, the screenings were negative and thus not material. The Board acknowledges the Veteran's representative's notation that the Veteran reported "one to two alcoholic drinks a typical day in the past year" during the alcohol screening The record clarifies that the noted "typical day" occurred "monthly or less," however; specifically, the Veteran reported drinking one to two drinks on a "typical day when [he] was drinking" which occurred "monthly or less." (Emphasis added by the Board). The Board finds the screenings do not provide information that could render the April 2012 decision nonfinal. The representative also contended that the November 2014 rating decision applied 38 C.F.R. § 3.156(b) and that the Board should do likewise. In support of this contention, the representative noted that the November 2014 rating decision reports that new VA treatment records were received dating from March 2006 to September 2014. The Board finds this contention has no merit. The November 2014 rating decision does not report that the matter was reconsidered under 38 C.F.R. § 3.156(b); rather, the rating decision reports that the matter was reopened which suggests a finality of the prior decision. As noted above, the only records dated within the "one year window" date in October, November, and December 2012. The evidence reviewed by the November 2014 rating decision also included August and September 2014 treatment records which reveal new psychiatric diagnoses. The Board finds it would require baseless speculation to attribute the reopening to the 2012 records rather than the 2014 records which reveal the initial diagnosis of psychiatric disability. The Board further finds 38 C.F.R. § 3.156(c) does not apply. The record at the time of the April 2012 rating decision included the Veteran's service personnel and treatment records and his reported stressor involving an elevator shaft accident and of being "terrified when the war began." The record did not include a diagnosis of posttraumatic stress disorder or other psychiatric disorder at the time of the April 2012 rating decision (or within the one-year appeal period). As noted by the Court of Appeals for the Federal Circuit (Federal Circuit), in order for evidence to be relevant in the context of 38 C.F.R. § 3.156(c), "a record must speak to a matter in issue, in other words, a matter in dispute." Kisor v. Wilkie, 969 F.3d 1333, 1336 (Fed. Cir. 2020). In Kisor v. Wilkie, a Veteran was initially denied service connection for posttraumatic stress disorder (PTSD) because although service records established that he had suffered an in-service combat stressor, there was no current disability. Many years later, additional service department records were received which again confirmed that he participated in combat. Receipt of these records prompted the RO to obtain a new VA examination where the examiner provided a current diagnosis of PTSD and which led to an award of service connection. The Federal Circuit clarified that the subsequently received service department records were not "relevant" within the meaning of 38 C.F.R. § 3.156(c) because the additional records did not speak to the basis of VA's prior decision: the lack of a current disability. The facts in this case are similar to those in Kisor. Specifically, the record at the time of the April 2012 rating decision included the Veteran's competent history of in-service stressor but no diagnosis linked to that stressor and later evidence spurred the RO to obtain a VA examination where an examiner provided a diagnosis of PTSD linked to the reported stressor. The Veteran's representative has contended that these subsequently obtained service records (noted as hostile pay records and another sailor's service records) establish the missing nexus element and therefore they are relevant for purposes of 38 C.F.R. § 3.156(c)(1). The Board disagrees. As noted above, these records established only that the Veteran experienced a stressor and/or was within a hostile area. Although receipt of these records prompted the RO to conduct additional development which ultimately led to an award of service connection, these service department records alone would have been insufficient to establish service connection at the time of the 2012 denial. The purpose of 38 C.F.R. § 3.156(c) is "to place a veteran in the position he would have been had the VA considered the relevant service department record before the disposition of his earlier claim." Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). Even if these service records had been associated with the claims file at the time of the 2012 denial, the record would still be absent a current diagnosis. The Veteran was not granted service connection due to information in official service department records that existed and had not been associated with the claims file when VA first decided the claim, but instead due to an examination showing PTSD due to in-service stressor. Therefore, the benefit of 38 C.F.R. § 3.156(c)(1) is not applicable to this case. Moreover, the Board notes that even if the service record were relevant, an earlier effective date is not warranted under 38 C.F.R. § 3.156(c)(3) because the initial diagnosis of PTSD postdates the effective date currently assigned. Notably, the initial diagnosis of record suggestive of posttraumatic stress disorder dates in August 2014. The Board notes that the Veteran has contended that the Regional Office failed in its duty to assist the Veteran in scheduling an examination prior to the April 2012 rating decision. To the extent the contention is an argument that the RO committed a Clear and Unmistakable Error (CUE), the Board does not have jurisdiction to adjudicate in the first instance assertions of CUE in RO decisions. See Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006) (en banc) (assertion of CUE in a RO decision must first be presented to and decided by the RO before the Board has jurisdiction to decide the matter). Therefore, CUE is not before the Board. Accordingly, the Board finds the earliest possible effective date for the award of service connection is the currently assigned effective date, and the claim for an effective date prior to June 16, 2014, for the award of service connection must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.