Citation Nr: 21030015 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-51 648 DATE: May 17, 2021 ORDER Entitlement to an earlier effective date of July 5, 2003 for the award of service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. In October 2003 and December 2005 the Veteran submitted claims for service connection for PTSD that was denied by unappealed rating decisions in February 2004 and April 2006; a January 2013 rating decision granted service connection for PTSD, effective January 23, 2012, the date the reopened claim was received. 2. In December 2007, the RO obtained service department records created during the Veteran's time in service, documenting the in-service stressors of combat; the grant of service connection for PTSD was based, in part, on those records; because the receipt of service department records in 2007 is directly relevant to the issue of service connect for PTSD, the February 2004 and April 2006 decisions must be reconsidered, and are no longer final. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date for the grant of entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from April 1999 to July 2003. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is available in the record. A June 2020 Board decision denied entitlement to an earlier effective date for the grant of service connection for PTSD. The Veteran appealed the June 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a January 2021 order, that incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the Board's June 2020 decision. Entitlement to an earlier effective date of July 5, 2003 for the award of service connection for posttraumatic stress disorder (PTSD) is granted. The JMR vacated and remanded the February 2020 Board decision because it did not provide adequate reasons and bases as to why it did not address the applicability of 38 C.F.R. § 3.156(c) with regard to the Veteran's service department records. Initially, the Board notes it was the primary contention of the Veteran that he is entitled to an earlier effective date based of clear and unmistakable error in prior rating action (CUE). However, the Board finds no basis for CUE and therefore it will not be addressed further. The clear contention in the past of "CUE" appears to be the basis, in part, of the confusion in this case as the Board address the issue of "CUE" as raised by the Veteran. There were no "errors" in the prior rating actions based on information that existed at the time of the prior rating actions. However, this does not end the Board's review of this case. The Veteran first submitted a claim for service connection for PTSD in October 2003, shortly after separation form service. The claim was denied in a February 2004 rating decision based on a finding that no stressor event could be verified. The Veteran did not appeal that decision. In December 2005, the Veteran requested to reopen his claim for entitlement to service connection for PTSD. In an April 2006 rating decision, the Veteran's claim remained denied based on a finding that the evidence submitted was not new and material. The rating decision stated that the available evidence was not new and material and was insufficient to confirm that the Veteran engaged in combat. The Veteran refiled his claim for PTSD in January 2012. The claim was granted in a January 2013 rating decision with a disability rating of 50 percent effective January 23, 2012. When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases the effective date cannot be earlier than the subsequent claim to reopen. 38 U.S.C. §§ 5110 (a), (i), 5108; 38 C.F.R. § 3.400 (q), (r); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). The award can be made effective no earlier than the date of the new application. 38 U.S.C. §§ 5110 (a), (i), 5108; 38 C.F.R. §§ 3.156 (c), 3.400(q), (r). However, an exception to this rule occurs when the new and material evidence includes service department records. 38 C.F.R. § 3.156 (c); Vigil v. Peake, 22 Vet. App. 63 (2008). Under 38 C.F.R. § 3.156 (c), 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. Here, service personnel records were associated with the claims file after both the February 2004 and April 2006 rating decisions were issued. The Board finds the records were relevant to the claim of service connection for PTSD. In a recent decision, Kisor v. Wilkie, 969 F.3d 1333 (Fed. Cir. 2020) (issued after the Board's prior decision in this case), the United States Court of Appeals for the Federal Circuit explained that for records to be relevant in the context of 38 C.F.R. § 3.156 (c), the record must address a dispositive issue and therefore affect the outcome of the case. In other words, the record must speak to a matter in dispute. Id. at 1338-39. A review of the service records added to the claims file after the rating decisions revealed evidence the Veteran was in receipt of the Combat Action Ribbon and that he engaged in combat during his approximate three-month deployment to Iraq. These were not present in the records available prior to the February 2004 and April 2006 rating decisions. Furthermore, these same records formed part of the basis of the later grant of service connection in 2012. See Flores-Vazquez v. McDonough, No. 2019-1780, 2021 U.S. App. LEXIS 12941 (Fed. Cir. 2021). Importantly, the receipt of the service treatment records rendered the February 2004 and April 2006 rating decisions non-final, and claim must be reconsidered de novo. See 38 C.F.R. § 3.156 (c). VA is obligated to reconsider the original claim when relevant service records are received. In this case, the Veteran has submitted service records that existed and had not been associated with the claims file when VA first decided the claim in 2004. Resolving reasonable doubt in the Veteran's favor, the Board finds that these documents corroborate the Veteran's reported in-service stressors. Under 38 C.F.R. § 3.156 (c)(3), an award made based all or in part on additional service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. In this case, the evidence indicates that the Veteran met the criteria for service connection for PTSD since October 23, 2003 (the date the first decided claim was received). However, the provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. The Veteran separated from service in July 2003. See DD Form 214. He filed his claim for service connection for PTSD within a year of separation in October 2003. Therefore, granting the Veteran the benefit of the doubt, he is entitled to an effective date of July 5, 2003, the day after separation from service. This finding renders the CUE motion moot. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.