Citation Nr: 21040027 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 12-11 605A DATE: July 2, 2021 ORDER Entitlement to an effective date of July 9, 2008, but no earlier, for the grant of service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran did not file a formal or informal claim for service connection for an acquired psychiatric disorder prior to the receipt of his July 9, 2009 original claim. 2. Resolving reasonable doubt in the Veteran's favor, he met the criteria for entitlement to service connection for PTSD as of April 11, 1980, the effective date VA amended its adjudication regulations governing service connection for PTSD. CONCLUSION OF LAW The criteria for an effective date of July 9, 2008, but no earlier, for the award of service connection for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1965 to June 1968. In August 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In November 2015, the Board denied the Veteran's claim for entitlement to an effective date earlier than July 7, 2009 for the grant of service connection for PTSD. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (hereinafter Court). In June 2017 decision, the Court issued a Memorandum Decision vacating the Board's decision and remanding the claim for further development. The Court stated that for purposes of 38 C.F.R. § 3.114(a), VA determined that the addition of PTSD to the rating schedule, effective April 11, 1980, constituted a liberalizing law. Thus, a retroactive effective date for PTSD may be assigned under 38 C.F.R. § 3.114(a) if the claimant met all eligibility criteria for the liberalized benefit on April 11, 1980, and "such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement." The Court noted that the Board failed to discuss 38 C.F.R. § 3.114(a) and whether its application would warrant an earlier effective date. The Court vacated the Board's decision and remanded the claim for further development. In December 2017, and based on the Court's findings, the Board remanded the claim. In January 2020, the Board remanded the claim for further development. The Board notes that in December 2017 and January 2020, the Board remanded the appeal for procurement of potentially outstanding records from the Florida, New York, Indiana, and Georgia Regional Offices. The Board instructed VA to issue a Formal Finding on the Unavailability of Records Memorandum if the records were not obtained. VA requested the records from the Florida, Indiana, New York, and Atlanta ROs. The ROs noted that all the files were sent to be scanned, and/or there were no paper file folders present for the Veteran. VA also requested records from the Records Management Center and National Archives and Records Administration. The organizations stated that either the files were sent to be scanned, or there were no paper file folders present for the Veteran. While a formal finding of unavailability was not issued, based on VA's efforts and the response provided to VA, the Board determines that any further efforts to obtain possibly missing records would be futile. Accordingly, the Board finds that there has been substantial compliance with the prior remand directives, and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998). Earlier effective date Generally, the effective date of an award of disability compensation based on a reopened claim after a final adjudication or disallowance is 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. Unless specifically provided, the effective date will be assigned based on the facts as found. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(a). Analysis The Veteran seeks an effective date earlier than July 7, 2009, for the award of service connection for PTSD. Specifically, the Veteran stated that the effective date for the award should be 1972. By way of history, VA received the Veteran's initial claim for entitlement to service connection for PTSD on July 9, 2009. On May 7, 2010, VA granted service connection for PTSD, assigning a 50 percent disability rating effective July 9, 2009. On May 25, 2010, the Veteran disagreed with the effective date of the award. The Veteran stated, and the record reflects, that in July 1972, he received treatment and was diagnosed with anxiety neurosis with phobic and obsessional complements. He stated that his 1972 treatment records were not used when deciding the effective date for his award. During his August 2015 Board hearing, the Veteran stated that in 1972, he was having problems with the way he was thinking. So, he checked himself in to the Brooklyn VA hospital. He was placed in the psychiatric ward. However, he checked himself out. Sometime after checking himself out, the Veteran stated that, with the assistance of a man from the Brooklyn, New York RO, he attempted to file a claim for his issue. The man indicated that that he would timestamp the application. The Veteran stated that he never received any communication from VA regarding the claim. In the December 2017 Board remand, the Board noted that from 1968 to 1979, the claims file showed the Veteran went to school, worked, and lived in several states including Florida, New York, Indiana, and Georgia. The Board also noted that the Veteran's claims file was transferred together with his father's, who was also a Veteran. The Board found that it was possible that a separate file existed that was never merged with the Veteran's claims file, and, also, some documents could have been misplaced in the Veteran's father's claims file. The Board instructed that requests be made to the ROs in Florida, New York, Indiana, and Georgia for any "missing records" relating to the Veteran. The Board further instructed that the Veteran and his representative be informed and afforded the opportunity to provide any records the Veteran may have in his possession. Based on the Board's remand, VA attempted to obtain the Veteran's paperwork. The Florida, Indiana, and Atlanta ROs noted that all the files were sent to be scanned, and/or there were no paper file folders present for the Veteran. Additionally, the Records Management Center noted that the Veteran's files could not be found, and the National Archives and Records Administration noted that all the Veteran's records were scanned. The New York RO did not respond. In January 2020, the Board, once again, remanded the claim. The Board instructed VA to locate and associate with the claims file any record or files relating to the Veteran, in particular, all files from the New York RO. Additionally, the Board instructed VA to schedule the Veteran for a VA psychiatric examination to determine whether his PTSD manifested from 1972. In February 2021, the New York RO noted that it did not have a claims file for the Veteran. In March 2021, the Veteran was afforded a VA examination to determine whether the his PTSD manifested from 1972. He stated that his nightmares began while he was still on active duty. Shortly after discharge from service, he noticed his depression, and he was hospitalized in New York in 1972. The examiner confirmed the Veteran's PTSD diagnosis. The examiner opined that the claimed condition was at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that it was clear that the Veteran started having PTSD symptoms while on active duty. The Veteran's military records indicate that he was in Vietnam, he has Vietnam service Medal, and combat infantry badge. The Veteran was hospitalized in July 1972 because he endorsed "not feeling right", struggled to get along with others, and experienced anxiety. The examiner stated that these were more than likely symptoms/precursors to the Veteran's PTSD diagnosis. The examiner reviewed the letter submitted by the Veteran's friend. The examiner stated that the statements in the letter are also consistent with someone who exhibits PTSD behavior. The examiner concluded that it is more likely than not, more than 50 percent, that the Veteran's symptoms started in the military, were existent in 1972, and existed since then. Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An application for VA compensation must generally be a specific claim in the form prescribed by the VA Secretary (i.e., VA Form 21-526). 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). However, prior to March 24, 2015, a claim could be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p) (2014). But see 38 C.F.R. § 3.1(p) (2015) (now providing that a "claim" must be submitted on an application form prescribed by the Secretary); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (eliminating informal claims by requiring that, effective March 24, 2015, claims be filed on standard forms). As noted above, VA received the Veteran's initial claim for service connection on July 9, 2009. However, the Veteran contends that he initially filed and/or attempted to file a claim for benefits after he left the Brooklyn VA hospital in July 1972. The Board notes that after requesting the Veteran's claim filed from the New York, Atlanta, Indiana, and Florida ROs, the claims file does not contain any correspondence prior to July 9, 2009 which could be construed as a formal or informal claim of entitlement to service connection for PTSD. In VAOPGCPREC 26-97 (July 16, 1997), the General Counsel held that the addition of Diagnostic Code 9411, recognizing PTSD as a diagnostic entity, to VA's Schedule for Rating Mental Disorders under 38 C.F.R. § 4.132, effective April 11, 1980, was a liberalizing issue for purposes of 38 C.F.R. § 3.114 (effective date of an award pursuant to a liberalizing issue). Although VAOPGCPREC 26-97 concluded that the addition of PTSD to the Rating Schedule in 1980 is considered a liberalizing law for the purposes of 38 C.F.R. § 3.114, it does not authorize a retroactive award for every grant of service connection for PTSD. The effective date of an award made pursuant to a liberalizing act shall be fixed in accordance with the facts found. Entitlement to an earlier effective date is not warranted unless the veteran met all the eligibility criteria for PTSD on the effective date of the liberalizing law and such eligibility existed continuously from that date to the date of claim. Thus, while the addition of DC 9411 for PTSD may be considered a liberalizing issuance, a retroactive effective date cannot be assigned unless the evidence establishes that the veteran developed PTSD as of April 11, 1980, and that the disability continued up to the date that the claim for compensation was filed, in this case, July 9, 2009. See 38 C.F.R. § 3.114 (a); VAOPGCPREC 26-97. Regarding how much earlier the effective date can be, the regulations provide: (1) If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue. (2) If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement. (3) If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. Upon review, the Board finds the evidence of record indicates that the Veteran met the eligibility criteria for service connection for PTSD on April 11, 1980. A review of the record shows that the Veteran has been experiencing PTSD symptoms since the 1970s. Significantly, the Veteran's 1972 treatment records note that he was hospitalized and diagnosed with anxiety neurosis with phobic and obsessional complements. Additionally, the VA examiner stated that the medical record from that 1972 visit indicates the Veteran's anxiety and other symptoms were more than likely symptoms/precursors to the Veteran's PTSD diagnosis. The VA examiner concluded that it is more likely than not, more than 50 percent probability that the Veteran's symptoms started in the military, were existent in 1972, and existed since then. After resolving all doubt in the Veteran's favor, the Board finds the evidence of record indicates his PTSD predated April 11, 1980, the date of the applicable liberalizing law. However, because the initial claim for PTSD was filed more than 1 year after April 11, 1980, benefits could only be authorized for a period of 1 year prior to the date of receipt of the claim, i.e., July 9, 2008. 38 C.F.R. § 3.114(a)(3). Therefore, the Board finds that an effective date of July 9, 2008, but no earlier, for the grant of service connection for PTSD is warranted. The benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Tara-Deen 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.