Citation Nr: 21029600 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 19-37 873 DATE: May 14, 2021 ORDER An effective date for the grant of service connection for posttraumatic stress disorder (PTSD) is granted effective May 30, 1997. FINDING OF FACT Evidence of the Veteran's PTSD disability existed prior to the issuance of the denial of the claim in July 1998, was relevant to the claim, and had not been associated with the claims file at the time of the prior decision in July 1998. CONCLUSION OF LAW The criteria for entitlement to an effective date of May 30, 1997, for the grant of service connection for a PTSD are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156(c), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from October 1968 to May 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in February 2015 for a statement of the case (SOC) to be issued. Subsequently, as the SOC was not issued, the Board remanded again in January 2017 and in December 2017. It has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). VA issued a SOC in November 2019. Earlier Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the formal claim has not been filed, an application form will be forwarded to the claim for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the formal claim. 38 C.F.R. § 3.155. For claims for an increase in a service-connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98. A decision by VA with respect to entitlement to benefits is deemed final unless a notice of disagreement is filed within one year of receipt of the notification of the decision. 38 U.S.C. § 7105(b), (c). A notice of disagreement is a written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination and a desire to contest the result. 38 U.S.C. § 7105(b); 38 C.F.R. § 20.201. If, at any time after VA issues a decision on a claim, 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 the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c). A decision by the Court of Appeals for Veterans Claims (Court) specified the requirements for a service department record which would trigger application of 38 C.F.R. § 3.156(c). The new records should (1) be relevant to the claim; (2) have been in existence at the time of the prior decision; and (3) not have been associated with the claims file at the time of the prior decision. Emerson v. McDonald, 28 Vet. App. 200, 208 (2016.) The Court stated that when these requirements are met, the law required that VA then reconsider the claim. Id. at 210. Entitlement to an earlier effective date (EED) for the grant of service connection for PTSD. The Veteran contends that he should be assigned an effective date in 1997 for his grant of service connection for PTSD. In this matter, the July 1998 rating decision denied the Veteran's claim partly because his stressors were not verified at the time. By way of procedural history, the Veteran filed his claim for PTSD on May 30, 1997. This claim was denied in July 1998 and the Veteran did not appeal. He next filed a claim for PTSD in December 2004. Eventually, the RO granted the claim in April 2008 and assigned an effective date of December 29, 2004. As noted above, section 3.156(c) discusses relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. See Lang v. Wilkie, 971 F.3d 1348, 1354 (Fed. Cir. 2020) (providing that the VA has constructive knowledge of evidence that was "generated by the VA or was submitted to the VA"). Evidence that "could reasonably be expected to be part of the record" is evidence that "pre-date[s] the [Board] opinion" and is relevant. Bell, 2 Vet. App. at 612-13; see Lang, 971 F.3d at 1353-55 ("[I]n the context of records created prior to a decision, all relevant and reasonably connected VA-generated documents are part of the record and, therefore, constructively known by the VA adjudicator."). The constructive possession doctrine provides that evidence that is "within the Secretary's control" and "could reasonably be expected to be a part of the record 'before the Secretary and the Board,'" is constructively part of the administrative record. Bell, 2 Vet. App. at 613 (quoting 38 U.S.C. § 7252(b)); see Lang, 971 F.3d at 1353-55. In such cases, VA will reconsider the claim without regard to regulatory guidance regarding the submission of new and material evidence. Here, probative service department records in question were not associated with the claims file until May 2005. The records verified that the Veteran's units in Vietnam experienced enemy motor rounds, fire, and rocket attacks. The service department records received in May 2005 were relevant to the Veteran's claim of service connection for PTSD as it verified his stressors. The requirement under 38 C.F.R. § 3.156(c) is relevancy, and that has been met. Further, in accordance with Emerson, they were in existence at the time of the prior decision, but were not associated with the claims file at that time. As such, their submission warrants reconsideration of the claim. The competent evidence shows the Veteran experienced enemy combatant fire in Vietnam. The April 2008 rating decision granted service connection based, in part, on the May 2005 records which verified the Veteran's stressors. Additionally, an examiner reported that the Veteran suffered from PTSD which was related to his in-service combat and stressors. Thus, had the service records been associated with the claims file at the time of the July 1998 rating decision, service connection would have been granted effective May 30, 1997. The Board has reviewed the record to determine if an earlier date can be assigned prior to May 30, 1997. The record does not indicate that the Veteran filed a claim for PTSD prior to this date. Moreover, the Veteran and his representative asserted his effective date should be in 1997. Additionally, even if entitlement arose prior to May 30, 1997, the effective date remains May 30, 1997, the date of the claim because it is the latter of the two dates. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Therefore, an effective date of May 30, 1997, for the grant of service connection for PTSD is warranted. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.