Citation Nr: 21041463 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-19 061 DATE: July 9, 2021 ORDER Entitlement to an earlier effective date of April 24, 2014 for the award of service connection for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran's original claim of service connection for PTSD was received on July 29, 2010, several years after his separation from service, and was denied in an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was properly notified of that decision, but he did not appeal it. 2. After the October 2010 rating decision, no formal or informal claim for service connection for PTSD was received from the Veteran prior to April 24, 2014. 3. A petition to reopen the claim of service connection for PTSD was received from the Veteran on April 24, 2014, along with his detailed stressor statement and a printout from the U.S. National Archives & Records Administration (NARA) confirming the reported stressor. 4. In June 2014, VA obtained the Veteran's electronic VA treatment records, including a November 9, 2010 VA report of a PTSD assessment. 5. New and material evidence was constructively received by VA within one year of the October 2010 rating decision, specifically a November 9, 2010 VA medical opinion by a VA psychologist diagnosing PTSD under DSM-IV and linking it with a reportedly uncorroborated in-service stressor. 6. Entitlement to service connection for PTSD arose on April 24, 2014, the date of receipt of the Veteran's stressor statement and verification of the in-service stressor. CONCLUSIONS OF LAW 1. The October 2010 rating decision did not become final. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(b). 2. The criteria for an effective date of April 24, 2014, and no earlier, for the award of service connection for PTSD are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.304(f), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1980 to September 1990, January 1996 to September 1996, January 1997 to January 1998, and September 1998 to September 1999. This case comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Agency of Original Jurisdiction (AOJ). In a July 2016 rating decision, the AOJ granted service connection for PTSD, effective July 1, 2016; the Veteran appealed for an earlier effective date. The Veteran testified before the undersigned Veterans Law Judge at a December 2020 hearing; a transcript of the hearing is of record. The Board notes that the AOJ granted service connection for PTSD based on a July 1, 2016 VA contract examination (PTSD Disability Benefits Questionnaire (DBQ)). See July 2016 rating decision, October 2016 rating decision, and February 2018 statement of the case. The AOJ should ensure that the July 1, 2016 VA examination report is associated with the file. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with adjudication of the issue on appeal given the fully favorable nature of the Board's decision. Effective Dates The effective date for an award of service connection for claims received within one year after separation from service shall be the day following separation from service, or date entitlement arose; otherwise, the effective date shall be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2). The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2), (r). Prior to March 24, 2015, a "claim" was defined as "formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit." 38 C.F.R. § 3.1 (p) (2014). An informal claim included "[a]ny communication or action, indicating an intent to apply for one or more benefits..." 38 C.F.R. § 3.155 (a) (2014). Claims filed on or after March 24, 2015, must be submitted on the application form prescribed by the Secretary. 38 C.F.R. § 3.1 (p). 1. Entitlement to an earlier effective date for service connection for PTSD The Veteran contends that an earlier effective date of April 10, 2014 should be granted for the award of service connection for PTSD, because he filed an application to reopen his previously denied claim on that date, and he was previously diagnosed with PTSD by a VA provider on June 15, 2010 and October 15, 2010. See his July 2017 notice of disagreement, and April 2018 substantive appeal. In his July 2017 notice of disagreement, the Veteran noted that his original PTSD claim was denied in an October 2010 decision, and stated, "I failed to provide VA with a timely notice of disagreement and I understand this claim is considered final." At the December 2020 Board hearing, the Veteran testified that he filed a claim of service connection for PTSD on June 21, 2010, and that after the October 2010 decision, he did not file any claims for service connection for PTSD prior to the April 2014 claim. He contended that at the time of the October 2010 decision, his VA progress notes showing treatment for PTSD based on an in-service stressor should have been available to the VA for review. See hearing transcript, pages 3-4. A review of the claims file shows that the Veteran's original claim of service connection for PTSD was received by VA on July 29, 2010. The Board notes that although this claim was signed by the Veteran on June 21, 2010, it was received by VA on July 29, 2010. The Veteran does not contend, and the evidence does not reflect that there was any prior formal or informal claim for service connection for PTSD. Service connection for PTSD was denied in an October 2010 RO decision. The Veteran was notified of this decision by a letter dated in October 2010, and he did not appeal it. The Board finds that after the October 2010 denial of service connection for PTSD, no formal or informal claim for service connection for PTSD was received from the Veteran prior to April 24, 2014, when VA received the Veteran's application to reopen a previously denied claim for service connection for PTSD. The Board notes that although this claim was signed by the Veteran on April 10, 2014, it was received by VA on April 24, 2014. On the same day (April 24, 2014), VA also received the Veteran's statements regarding two in-service stressors, as well as a February 2013 printout from the NARA related to the in-service death of LCDR T.C.S. in October 1982. In one of the Veteran's April 2014 stressor statements, he described finding the body of LCDR T.C.S. after his suicide in October 1982. In the other April 2014 stressor statement, the Veteran described being physically assaulted in May 1982 during an attempted robbery, and enclosed a duplicate copy of a May 1982 service treatment record reflecting treatment for facial trauma incurred in a mugging. In June 2014, the AOJ obtained the Veteran's electronic VA medical records, which list PTSD as an active problem, and reflect treatment for PTSD. These medical records include a November 9, 2010 report of a PTSD assessment that was performed on June 15, 2010. A July 2010 note reflects that the Veteran was advised of the June 15, 2010 PTSD assessment, and that individual therapy for PTSD was recommended. The November 9, 2010 VA PTSD assessment report reflects that S.N. Allen, Ph.D. opined that the Veteran's reported symptoms met the full DSM-IV-TR diagnostic criteria for a diagnosis of military-related PTSD. The Axis I diagnoses were military-related PTSD, major depressive disorder, recurrent, and moderate alcohol dependence. The diagnosis of PTSD was based on the Veteran's reported stressor of finding the body of Commander S. in his stateroom after his suicide, in October 1981. In his report, Dr. A. stated that all traumatic events reported were from self-report and had not been corroborated by outside sources. On VA examination in November 2014, the examiner diagnosed major depressive disorder with mixed anxiety, and opined that it was not related to service, and found that the Veteran did not meet the full DSM-5 diagnostic criteria for a diagnosis of PTSD. In a November 2014 rating decision, the AOJ denied service connection for major depressive disorder with mixed anxiety, and confirmed and continued the prior denial of service connection for PTSD. The Veteran was notified of this decision by a letter dated in November 2014, and a notice of disagreement was received from him in July 2015, as to the issue of service connection for PTSD. He enclosed a duplicate copy of the November 9, 2010 VA PTSD report of the June 2010 assessment. In the July 2016 rating decision on appeal, the AOJ granted service connection for PTSD, effective July 1, 2016, based on a VA examination that diagnosed PTSD on that date. The Board finds that the November 9, 2010 report of a VA PTSD assessment is both new and material evidence regarding the claim for service connection for PTSD. Governing regulation provides that new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). Thus, the October 2010 decision as to PTSD did not become final, because this VA medical record was in VA's constructive possession within one year of the October 2010 rating decision. Id.; Bell v. Derwinski, 2 Vet. App. 611 (1992), see also Turner v. Shulkin, 29 Vet. App. 207 (2018); Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020) (medical records generated by VA within one year of a decision are constructively "received" for purposes of § 3.156(b)). Thus, the current appeal arises from the Veteran's July 29, 2010 original claim of service connection for PTSD. However, as noted above, the effective date of service connection shall be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2). Thus, it must be determined when entitlement to service connection for PTSD arose. The term "date entitlement arose" is not defined in the current statute or regulation. The United States Court of Appeals for Veterans Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110 (a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (in the context of a service connection claim, the Board must determine when the service-connected disability manifested itself under all of the facts found). See Young v. McDonald, 766 F.3d 1348 (2014) (service connection for PTSD requires medical evidence diagnosing the condition). Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). The November 9, 2010 VA medical opinion linked the Veteran's PTSD to his reported in-service stressor, which has since been corroborated by the evidence received on April 24, 2014. Therefore, the Board finds that entitlement to service connection for PTSD arose on April 24, 2014, when the requirements of 38 C.F.R. § 3.304 (f) were met. The Board concludes that the proper effective date for service connection for PTSD in this case is the date entitlement arose: the date of VA's receipt of the evidence verifying the Veteran's reported in-service stressor (April 24, 2014). 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). Thus, the benefit sought on appeal is granted. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. L. Wasser, 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.