Citation Nr: 22015265 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 10-05 630 DATE: March 16, 2022 ORDER Entitlement to an effective date earlier than December 17, 2008, for service connection for post-traumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The record reflects that an informal claim for a psychiatric condition was raised through actions taken by the regional office (RO) to develop the Veteran's September 1959 claim for a brain concussion. 2. A January 1960 rating decision implicitly denied the Veteran's inferred claim for a psychiatric disorder. The Veteran did not appeal that decision nor submit new and material evidence within a year of the January 26, 1960, notification letter; thus, it became final. 3. On December 17, 2008, the Veteran submitted a new claim for service connection for PTSD, which was granted by the RO in a July 2012 rating decision. 4. There are no communications between the January 1960 rating decision and the December 2008 claim that may be considered a formal or informal claim for service connection for a psychiatric disorder. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than December 17, 2008, for service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.152, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 1948 to December 1952, including service in Korea. Unfortunately, the Veteran died during the pendency of this appeal. The appellant is his surviving spouse. The Board is sincerely thankful for the Veteran's service to our country. This matter comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of a Department of Veterans Affairs (VA) RO that established service connection for PTSD and assigned an effective date of December 17, 2008, the date the claim was received. In a May 2013 decision, the Board, in pertinent part, denied entitlement to an effective date earlier than December 17, 2008, for the award of service connection for PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In September 2016, the Court issued a Memorandum Decision that set aside that portion of the May 2015 Board decision denying an effective date earlier than December 17, 2008, for the award of service connection for PTSD, and remanded the matter for readjudication. In a June 2017 decision, the Board denied entitlement to an effective date earlier than December 17, 2008. The Veteran again appealed to the Court. In August 2018, the Court issued an order granting the parties' July 2018 Joint Motion for Remand (Joint Motion). In the Joint Motion, the parties agreed that the Board erred in failing to support its decision with an adequate statement of reasons or bases. The parties agreed that the Board's determination that the RO did not believe that there was a claim for service connection for a psychiatric condition before it at the time of the January 1960 rating decision was clearly erroneous. In a March 2019 decision, the Board denied entitlement to an effective date earlier than December 17, 2008. The Veteran again appealed to the Court. In June 2021, the Court issued a Memorandum Decision that set aside the May 2019 Board decision and remanded the matter for readjudication. VA correspondence dated January 4, 2022 has been issued to the appellant and her representative, informing the appellant that she may submit any additional argument or evidence within 90 days of the date of the letter or waive the 90 day period if she would like the Board to proceed to immediate adjudication of the appeal for the issue vacated by the Court. In a response received by VA on January 19, 2022, the appellant's representative requested the Board adjudicate the appeal without review by the RO of the additional evidence submitted and waived any remaining time to submit additional evidence or argument. Thus, the Board may proceed with appellate review. 1. Entitlement to an effective date for service connection for PTSD earlier than December 17, 2008 The June 2021 memorandum decision explains that the March 2019 Board decision did not provide an adequate statement of reasons or bases for its conclusion that a reasonable person would understand that a psychiatric condition was implicitly denied in the January 1960 rating decision. The June 2021 memorandum decision describes that the record reflects that the Veteran's informal claim for a psychiatric condition was raised through actions taken by the RO to develop the claim for a brain concussion. The Court explains that proper recitation of how the informal claim was reasonably raised is important because "the implicit denial rule is, at bottom, a notice provision." Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). The June 2021 memorandum decision states that by mischaracterizing the Veteran's statements as asserting a claim for a psychiatric condition, the Board ascribed a degree of awareness to the Veteran which it then factored into its analysis. The June 2021 memorandum decision reasons that, given how the claim was raised, it is unclear if the Veteran had an awareness that the RO was considering a separate claim for a psychiatric condition. In general, the effective date of an award of disability compensation in conjunction with a grant of entitlement to service connection shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall 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(b)(2)(i). Additionally, VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant's representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant 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 receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). Under the old regulations, the Board also recognizes a veteran's claim was required to identify the sickness, disease, or injuries for which compensation was sought with at least at a high level of generality. Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020). Additionally, the identification of a claim could have been made indirectly through examination of evidence to which the claim documents themselves pointed to when sympathetically read. Shea v. Wilkie, 926 F.3d 1362, 1369 (Fed. Cir. 2019). Specifically, an informal claim may have been raised by language that pointed to records mentioning a condition in a way that, sympathetically read, was properly understood as seeking benefits for such a condition. Id. at 1370. Hence, where a claimant's filings referred to specific medical records, and those records contained a reasonably ascertainable diagnosis of a disability, the claimant had raised an informal claim for that disability under 38 C.F.R. § 3.155(a). Id. The record reflects that an informal claim for a psychiatric condition was raised through actions taken by the RO to develop the Veteran's September 1959 claim for a brain concussion. See March 2019 Board decision, June 2021 Memorandum Decision. However, the evidence does not support the appellant's contention that the claim for a psychiatric disorder was unadjudicated. Under the implicit denial rule, a claim in certain circumstances may be deemed denied even if VA did not explicitly address the claim in its decision. Adams, 568 F.3d at 961. The rule applies when VA's decision "is clear but not expressed," and it "reflects an appropriate balance between the interest in finality and the need to provide notice to veterans when their claims have been decided." Id. at 963. Because "the implicit denial rule is, at bottom, a notice provision," id. at 965, implicit denial of a claim must notify the veteran that the claim was considered and adjudicated. See Ingram v. Nicholson, 21 Vet. App. 233, 246-47 (2007) (explaining that a claimant must be able to reasonably deduce from the decision that the claim was denied). "[T]he proper notice standard is 'whether [a VA decision] provided sufficient information for a reasonable claimant to know that he [or she] would not be awarded benefits for his [or her] asserted disability.'" Munro v. Shinseki, 616 F.3d 1293, 1299 (Fed. Cir. 2010) (quoting Adams, 568 F.3d at 963). In Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010), the Court delineated four factors to be considered when determining whether a claim has been implicitly denied: (1) the relatedness of the claims; (2) the specificity of the adjudicationthat is, whether the adjudication alludes to the pending claim in such a way that it can reasonably be inferred that the pending claim was denied; (3) the timing of the claimsthat is, whether, for example, they were filed together but only one claim was adjudicated; and (4) whether the claimant was represented. The record reflects that in September, October, and November 1959, VA contacted four private treatment providers as directed by and with the consent of the Veteran. Three of the four physicians responded with transcriptions of prior treatment records; the fourth indicated that no treatment records were identified. A September 22, 1959, Certificate of Attending Physician by Dr. R. S. shows that, in February 1959, the Veteran presented with the chief complaint of headache that began in the frontal areas and spread backward. The headache complaint was associated with nervousness, weakness, and palpitations. The Veteran reported that he had suffered similar attacks since having a brain concussion in 1950. Physical examination at the time was essentially negative. The impression was listed as post-traumatic syndrome, possible tension cephalgia. A September 28, 1959, Certificate of Attending Physician by Dr. T. J., describes the clinical findings and symptomatology as pain in top of head with nervousness, off and on for nine years. The attending physician noted one prior office visit, in December 1955, at which the Veteran complained of pain in the posterior neck region, off and on, for eight months. The Veteran also complained of nervousness at that time. In a November 23, 1959, Certificate of Attending Physician by Dr. R. G., the physician reported treating the Veteran on September 14, 1959. The Veteran's symptoms were listed as dyspnea and apprehension; the impression was listed as hyperventilation. In response to in-service complaints and the private treatment records indicating a diagnosis of post-traumatic syndrome, the RO provided the Veteran with a neuropsychiatry examination. See October 1959 Examination Request. The December 1959 VA neuropsychiatry examination report states that the Veteran was referred for psychiatric and neurological examination with chief complaints of recurring headaches and heart murmur. The Veteran denied other complaints but described that he "just feel[s] bad sometimes". The Veteran explained that he did not feel "that he is a nervous case" but just had "worries like everybody else." The December 1959 examiner determined that the available records failed to show that the Veteran was a neuropsychiatry suspect in service. The December 1959 examiner stated that, although the Veteran showed abnormal traits on a few occasions, he was never studied or observed for mental illness and he has shown no abnormal behavior or major conflict in society. The December 1959 examiner further stated that the Veteran is not emotional or moody and his affect is appropriate to thought content. The examiner December 1959 observed that the Veteran expresses normal interest in self and family and "gets along well in general." The December 1959 examiner stated that the Veteran, mentally, is alert, readily responsive, attentive, and manifests no abnormal thought trends. The December 1959 examiner considered the Veteran's complaints of headache and heart trouble after his October 1950 motor vehicle accident and made physical observations but concluded that the Veteran has no other complaints suggestive of concussion and other central nervous system syndrome. The December 1959 examiner concluded that the Veteran has no positive history or clinical signs of mental illness, and that there were no organic residuals of the alleged head injury in October 1950 and no diagnoses were warranted. The January 1960 rating decision denied an original claim of "service connection for disabilities." The January 1960 rating decision observed that the neuropsychiatry examination stated that the Veteran was without and positive history or clinical signs of mental illness, and that no organic residuals of alleged head injury were found. Regarding the first Cogburn factor, the Board finds the informal psychiatric claim was closely related to the formal claim for residuals of brain concussion. The Veteran consistently reported psychiatric symptoms in the context of his symptoms of his residuals of brain concussion, such as headaches. Specifically, as discussed above, a Dr. R.S. documented, in part, the Veteran's headache complaint was associated with nervousness, weakness, and palpitations, the Veteran reported that he had suffered similar attacks since having a brain concussion in 1950, and provided an impression of post-traumatic syndrome, possible tension cephalgia. Similarly, Dr. T. J. describes the clinical findings and symptomatology as pain in top of head with nervousness, off and on for nine years. Thus, the record reflects the Veteran's psychiatric symptoms were reported in the context of his residuals of brain concussion. Accordingly, the informal psychiatric claim was closely related to the formal claim for residuals of brain concussion. Regarding the second Cogburn factor, the Board finds that a reasonable person would have been put on notice by the January 1960 rating decision that any contemplated claim for a psychiatric condition was implicitly denied. The January 1960 rating decision specifically states that the December 1959 neuropsychiatry examination was considered and explicitly addresses whether the Veteran had a diagnosis of a mental illness. The decision unequivocally states that "disabilities are denied," thereby establishing that the RO intended to deny all disabilities addressed in the January 1960 rating decision. As the psychiatric claim was raised in the context of the claim of service connection for brain concussion, the rating decision specifically noted that the VA examination conducted to develop the claims did not show a psychiatric condition or other residuals of a concussion, and then denied the claims, the Board finds that the January 1960 rating decision reasonably informed the Veteran that all claims, to include a psychiatric disorder, were denied. Regarding the third Cogburn factor, the Board finds that the Veteran's claim of service connection for a brain concussion and the implicitly raised claim of service connection for a psychiatric disorder were closely associated in time and in the way they were presented to VA and developed. As discussed in the June 2021 Memorandum decision, the RO's development of the September 1959 claim raised the informal claim for a psychiatric condition. However, it was the Veteran who determined which treatment records were relevant to his claim and instructed VA to obtain those records from his attending physicians. It is unambiguous that the Veteran was aware of the symptoms that he reported to his medical professionals, including the December 1955 and September 1959 reports of headaches associated with nervousness. The Veteran was, therefore, aware that VA was in receipt of the treatment records documenting headaches associated with nervousness and the diagnosis of post-traumatic syndrome. Essentially, the Veteran instructed VA to obtain treatment records documenting psychiatric symptoms and diagnoses. Moreover, shortly thereafter, the Veteran reported for a neuropsychiatry examination at which he specifically discussed whether he felt "that he is a nervous case" or just had "worries like everybody else." The Board finds that a reasonable person, having provided treatment records documenting "nervousness" and thereafter being scheduled for a neuropsychiatry examination, would have understood that VA was developing the issue of whether service connection for a psychiatric disorder was warranted. Finally, the only factor not met is the fourth Cogburn factor, as at the time of the January 1960 rating decision the Veteran was unrepresented. However, as described in the May 2021 memorandum decision, the claim for a psychiatric disorder was implicitly raised due to the actions taken by the RO to develop the Veteran's claim. Therefore, it can reasonably be inferred that the RO developed the psychiatric disorder claim as raised by the evidence. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); see also Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). As discussed above, the Board finds that a reasonable person, having provided treatment records documenting "nervousness" and thereafter being scheduled for a neuropsychiatry examination, would have understood that VA was developing the issue of whether service connection for a psychiatric disorder was warranted. Accordingly, the Board finds that even as an unrepresented claimant, the Veteran would have been provided sufficient notice of a denial of a psychiatric disorder to allow him to decide whether to accept the decision or appeal. Thus, the Board finds that the aggregate consideration of the four Cogburn factors weigh in favor of finding that the January 1960 rating decision implicitly denied any claim of entitlement to service connection for a psychiatric disorder. The Veteran did not submit a notice of disagreement as to the January 1960 rating decision and new and material evidence was not received within one year of notification of the rating decision. Accordingly, the Board finds that the January 1960 rating decision is final. Following the final January 1960 rating decision, the Veteran filed an informal claim for service connection for PTSD, which was received by VA on December 17, 2008. As noted above, in the July 2012 rating decision on appeal, the RO established service connection for PTSD and explained that an effective date of December 17, 2008 was assigned, as this was the date VA received the claim. The Board finds there is no basis under the general effective date regulations for an effective date earlier than December 17, 2008, for the award of service connection for PTSD. As noted above, 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). The Board finds that after the prior final denial in January 1960, no formal or informal claim (as permitted prior to March 24, 2015) for service connection for PTSD or a psychiatric disorder was received from the Veteran prior to December 17, 2008. There are simply no documents during the intervening period that show any intent on the Veteran's part to seek benefits during the period between notice of the January 1960 rating decision and the December 2008 claim to reopen. The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Thus, governing law and regulation provide that the proper effective date in this case may be no earlier than the date of receipt of the reopened claim. Consequently, the earliest possible effective date the for the grant of service connection for PTSD is December 17, 2008. M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O. Halpern 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.