Citation Nr: 21041500 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-20 121 DATE: July 9, 2021 REMANDED The issue of entitlement to an effective date earlier than April 30, 2014, for the award of service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran was a member of the New York Army National Guard from March 1976 to February 2005. The Veteran had verified periods of active duty for training from July 8, 1976, to October 28, 1967, and active duty from December 3, 2003, to January 12, 2005. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO reopened a previously denied claim of service connection for PTSD and granted that claim on the merits; an effective date of April 30, 2014, was assigned for the award of service connection for PTSD. The Veteran disagreed with the assigned effective date and subsequently perfected an appeal of that issue to the Board. In October 2019, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The instant matter was then previously before the Board in February and December 2020 at which times it was remanded for further development. Specifically, in the February 2020 action, the Board remanded the effective date claim on appeal for the agency of original jurisdiction (AOJ) to, inter alia, specifically adjudicate whether there was clear and unmistakable error (CUE) in a May 2007 rating decision denying service connection PTSD, noting that in written argument received in January 2020, the Veteran's representative had alleged CUE in that prior rating decision. In August 2020, the AOJ issued a rating decision wherein it determined that an effective date earlier than April 30, 2014, for the award of service connection for PTSD was not warranted on the basis of CUE in a May 2007 rating decision. A supplemental statement of the case (SSOC) addressing entitlement to an earlier effective date for the award of service connection for PTSD was issued that same month and the appeal was thereafter returned to the Board. In December 2020, the Board again remanded the issue of entitlement to an effective date earlier than April 30, 2014, for the award of service connection for PTSD to ensure compliance with the terms of the Board's prior remand. Specifically, the AOJ was instructed to verify whether the Veteran was serving on Federal active duty or active duty for training following the September 11, 2001, terrorist attacks, to including obtaining the Veteran's pay records from the Defense Finance and Accounting Service (DFAS). The record shows that on remand, the AOJ obtained the Veteran's pay records from DFAS. The AOJ also twice contacted the Veteran's Army National Guard Unit to request the Veteran's service personnel records. The Veteran's Army National Guard Unit did not respond to AOJ's requests and in March 2021, the AOJ notified the Veteran that further attempts to obtain the requested records would be futile. See 38 C.F.R. § 3.159(c)(2) (providing that VA will end its efforts to obtain records from a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile). The AOJ then issued a supplemental statement of the case (SSOC) in which it continued to deny entitlement to an effective date earlier than April 30, 2014, for the award of service connection for PTSD. The matter was thereafter returned to the Board for further appellate review. By way of background, the Board notes that in March 2007, the RO denied service connection for PTSD. The Veteran did not initiate an appeal by filing a notice of disagreement within one year. See 38 C.F.R. §§ 20.200, 20.201. Also, no new and material evidence for the claim was associated with the claims file within one of year the denial. See 38 C.F.R. § 3.156(b). Ordinarily, therefore, that decision would be final as to the evidence then of record, and would not subject to revision on the same factual basis. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 19.52. However, applicable regulations provide that if, 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 adjudicated the claim, VA will reconsider the claim notwithstanding the provisions of 38 C.F.R. § 3.156(a). 38 C.F.R. § 3.156(c)(1)(i)-(iii). In the instant case, the Board finds that relevant official service department records that existed and had not been associated with the claims file when VA first adjudicated the claim in May 2007 have since been associated with the claims file. Notably, when the Veteran first sought service connection for PTSD, he was afforded a VA examination in January 2007. During that examination, the Veteran reported that his National Guard unit was activated following the September 11, 2001, terrorist attack and that he was deployed to "Ground Zero." The Veteran stated that he worked at "Ground Zero" 12 to 18 hours a day for 6 months, sorting through debris and doing transport and decontamination work. He also reported that he was activated and deployed to Iraq from December 2003 to December 2004. Regarding his PTSD, the Veteran stated that he first began to experience symptoms of such after September 11, 2001, but that additional symptoms appeared after he returned from Iraq. Upon review of the record and examination of the Veteran, the VA examiner diagnosed the Veteran with PTSD, stating that the Veteran's primary trauma appeared to be his work at "Ground Zero" after the September 11, 2001, terrorist attacks. The examiner went on to state that the Veteran's service in Iraq further exacerbated the Veteran's PTSD. Service connection for PTSD was then denied by the RO in a May 2007 rating decision on the basis that the Veteran's PTSD pre-existed his period of active duty that began in December 2003. It was further determined that because the Veteran's reported stressors had not been verified, service connection could not be established on the basis of aggravation. Notably, in that decision, the RO discussed the Veteran's reported stressors of having been activated and deployed to "Ground Zero" following the September 11, 2001, terrorist attacks, but did not address whether the Veteran was serving on active duty at that time; there is also no indication that the AOJ attempted to develop evidence in support of the Veteran's assertion that he serving on Federal active duty at that time. In the February 2020 remand action, the Board noted the Veteran's assertion that he was on active duty orders following the September 11, 2001, terrorist attacks, but found that the nature of Veteran's service at that time was unclear from the record then-currently before it. The Board thus remanded the issue of entitlement to an earlier effective date for the award of service connection for PTSD for additional development, to include verifying all periods of active duty, active duty for training (ACDTURA), and inactive duty training (INACDUTRA) days from January 2001 forward. On remand, the Veteran submitted a copy of his orders showing that on September 11, 2001, he was ordered to duty in support of "Operation Trade Center". Upon review of this document, the Board concludes that it is a relevant official service department record and thus, reconsideration of the Veteran's original claim, filed in July 2006, is warranted. See 38 C.F.R. § 3.156(c)(1). In this regard, the Board notes that "[t]o be relevant, a record must be relevant to the issue that was dispositive against the veteran in the VA adjudication of the claim sought to be reconsidered and, in that way, bear on the outcome of the case." Kisor v. McDonough, 995 F.3d 1316, 1322 (Fed. Cir. 2021). In other words, "the record must speak to a matter in issue, in other words, a matter in dispute." Id. As noted, in the May 2007 rating decision, the AOJ considered that the Veteran's PTSD, which was noted to stem from incidents that occurred while serving at "Ground Zero", pre-existed the Veteran's period of active duty service beginning in December 2003; however, records pertaining to the nature of the Veteran's service in September 2001 were not before the AOJ. Thus, evidence that speaks to that issue is relevant. Id. Having determined that relevant official service department records have been received, 38 C.F.R. § 3.156(c)(1) "mandates that 'VA will reconsider the claim.'" Emerson v. McDonald, 28 Vet. App. 200, 208 (2016) (quoting 38 C.F.R. § 3.156(c)(1)). As explained by the United States Court of Appeals for Veterans Claims (Court) in George v. Shulkin, "reconsideration" under 38 C.F.R. § 3.156(c)(1) requires VA to reassess its original decision "in light of the new service records. 29 Vet. App. 199, 205 (2018), vacated on other grounds sub nom. George v. Wilkie, 782 F. App'x 997 (Fed. Cir. 2019). The Court also noted that this may also include the development of additional evidence. See id. Having determined that reconsideration is warranted, the Board finds it necessary to again remand that matter for further development. In the most recent remand action, the Board pointed out that the Veteran's retirement points sheet from the New York Army National Guard showed that he received 17 active duty points between March 2001 and March 2002 and 46 active duty points between March 2002 and March 2003, as well as 55 inactive duty for training points in each of those years. The Board stated that although orders pertaining to the Veteran's service on September 11, 2001, had been associated with the claims file, verification of which days the appellant served on ACDUTRA or INACDUTRA between March 2001 and March 2003 was not completed. The Board thus again remanded the matter for the AOJ to engage in additional efforts to obtain records indicating what, if any, active service, ACDUTRA, or INACDUTRA the Veteran may have completed in the months following the September 11, 2001, terrorist attacks. See Stegall v. West, 11 Vet. App. 268 (1998). On remand, the AOJ obtained the Veteran's pay records from the Defense Finance and Accounting Service (DFAS). The AOJ also made two requests for records from the 145th Maintenance Company, New York Army National Guard, which requests were unanswered. Regarding the DFAS records, the AOJ stated that the "pay records were reviewed and do not show entitlement to an earlier effective is warranted." The Board finds, however, that before such a conclusion can be made, further development is necessary. Indeed, the Veteran's pay records from DFAS suggest additional periods of active duty service from 2001 to 2003. Notably, a DFAS code sheet indicates that the code "50" corresponds to "[a]ctive duty paid for the day." Reviewing the Veteran's pay records from DFAS, the Board notes that the Veteran received active duty pay from June 1 to 16, 2001, from June 3 to 26, 2002, from September 16 to 20, 2002, and from September 23 to 27, 2002, from January 5 to 9, 2003, on January 18, 2003, from June 5 to 28, 2003, and from November 13 to 26, 2003. Although these dates fall outside of timeframe within which the Veteran reported he was working at "Ground Zero", the Board concludes that it cannot be ruled out that verification of the Veteran's service during these periods would have no bearing on his claim for an earlier effective dates. Accordingly, the Board finds that the matter must be remanded for the AOJ to determine the nature of the Veteran's service during the above periods, to include verifying whether he was serving on Federal active duty during these periods. Thereafter, the AOJ is to reconsider the Veteran's initial claim for service connection for PTSD, originally filed in July 2006, based on all evidence of record. In this regard, the Board points out that application of 38 C.F.R. § 3.156(c) renders the May 2007 rating decision non-final and, as such, the AOJ should consider whether the evidence of record supports a grant of PTSD at any point in time from July 2006 until it was granted in December 2014. In doing so, the Veteran should be afforded the relaxed the evidentiary standard required for establishing an in-service stressor to support a diagnosis of PTSD, as set forth in 38 C.F.R. § 3.304(f), effective July 12, 2010. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39843, 39851 (July 13, 2010). Lastly, as to the Veteran's previous assertions of CUE in the May 2007 rating decision denying service connection for PTSD, as the Board has determined that reconsideration of that decision is warranted pursuant to 38 C.F.R. § 3.156(c), there is no longer a final decision that can be attacked on the basis of CUE. See 38 C.F.R. § 3.105(a)(1) (providing that "[a]t any time after a decision is final, the claimant may request . . . review of the decision to determine if there was a clear and unmistakable error in the decision"). Accordingly, the theory of entitlement to an earlier effective date for the award of service connection for PTSD on the basis of CUE in the May 2007 rating decision is no longer part of the issue on appeal. The matter is REMANDED for the following action: 1. Contact all appropriate sources necessary to verify all Federal active duty, active duty for training, and inactive duty for training dates in the New York Army National Guard from January 2001 through December 2003. Specifically, it must be determined whether the Veteran was serving on Federal active duty from June 1 to 16, 2001, from June 3 to 26, 2002, from September 16 to 20, 2002, and from September 23 to 27, 2002, from January 5 to 9, 2003, on January 18, 2003, from June 5 to 28, 2003, and/or from November 13 to 26, 2003, as the Veteran's pay records from DFAS indicate that he received active duty pay during these periods. (Continued on the next page) 2. After verifying the periods of service outlined above, and conducting any other development deemed necessary, in accordance with 38 C.F.R. § 3.156(c), reconsider the Veteran's claims for service connection for PTSD, which claim was originally filed in July 2006, based on all evidence of record. Consideration must be given to whether the evidence of record supports a grant of PTSD at any point in time from July 2006 until it was granted in December 2014. In doing so, the Veteran should be afforded the relaxed evidentiary standard required for establishing an in-service stressor to support a diagnosis of PTSD, as set forth in 38 C.F.R. § 3.304(f), effective July 12, 2010. If the AOJ finds that an effective date earlier than April 30, 2014, for the award of service connection for PTSD is still not warranted, specific reasons for its determination must be provided. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.