Citation Nr: 22017602 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 08-38 171 DATE: March 25, 2022 ORDER Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is dismissed. Entitlement to an earlier effective date for grant of service connection for posttraumatic stress disorder (PTSD) prior to March 19, 2008, is denied. FINDINGS OF FACT 1. In February 2022 correspondence, the Veteran, through his representative, prior to the promulgation of a decision in the appeal, notified the Board that he did not wish to continue his claim of entitlement to an increased rating for PTSD on appeal. 2. Service connection was previously denied for nervous condition, later claimed as PTSD, in a March 1975 Board decision that was not appealed, nor was a motion for reconsideration requested. 3. Service personnel records associated with the file since the March 1975 decision do not constitute "relevant" records under 38 C.F.R. § 3.156(c), and a claim to reopen was not filed until March 19, 2008. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) by Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an earlier effective date for grant of service connection for posttraumatic stress disorder (PTSD) prior to March 19, 2008, have not been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2); 38 C.F.R. §§ 3.102, 3.156(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1966 to August 1968. Most recently, a February 2021 Board decision denied the Veteran's claims for entitlement to an earlier effective date for service connection of PTSD. In October 2021, the Veteran appealed the decision as to the above issues to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated in part and remanded the February 2021 Board decision as to the above issue. The Court found that the Board did not provide adequate Reasons and Bases in its decision. Specifically, the JMPR found that the Board did not consider all contentions, as well as the Board relied on Kisor v. Wilkie, 969 F.3d 1333 (Fed. Cir. 2020), which was amended after the decision, and therefore warranted new consideration. Withdrawal of Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. Here, in February 2022 correspondence, the Veteran withdrew his appeal for his pending claim of entitlement to an increased rating in excess of 70 percent for PTSD. Due to the Veteran expressing his desire to withdraw his appeal before the Board, there is effectively no longer any remaining allegation of error of fact or law concerning the claim. See 38 U.S.C. § 7105 (d)(5). Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Earlier Effective Date Generally, the effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. 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. However, 38 C.F.R. § 3.156(c) provides an exception: "[A]t any time after VA issues a decision on a claim, if 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." 38 C.F.R. § 3.156(c)(1); Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). The regulation further states that "[a]n award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim." 38 C.F.R. § 3.156(c)(3). A claim is "a 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). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155 (a). Entitlement to an Earlier Effective Date: PTSD The Veteran contends that his grant of service connection for PTSD should be provided an earlier effective date prior to March 19, 2008. Specifically, the Veteran contends that his award should be granted an effective date from June 4, 1973, the date he filed his claim for nervous condition. The Veteran argues that an earlier effective date is warranted under 38 C.F.R. § 3.156(c) because "new and relevant" service records were associated with the claims file after the final denial of that claim. The Veteran filed a claim for service connection for a nervous condition on June 4, 1973, which the Regional Office (RO) denied in an August 1973 rating decision. The Veteran submitted new evidence within one year and the RO denied the claim again in April 1974. The Veteran appealed the denial, and the claim was then denied by the Board in March 1975. The decision became final. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. On March 19, 2008, the Veteran filed a claim of service connection for PTSD. The Board subsequently granted the claim in May 2014. The Board notes at the time of the filing, neither the VA nor the Veteran characterized the March 2008 claim as a petition to reopen the June 1973 claim until the service connection claim was granted. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App.1 (2009). In Murphy v. Wilkie, the Federal Circuit held that "the Clemons lenient-claim-scope rule applies to requests to reopen." Murphy, 983 F.3d. 1313, 1318-20 (Fed. Cir. 2020). Here, the evidence of record shows at the time of the prior final denial, the Veteran reported feeling anxiety and nervousness. The Veteran reported similar symptoms when filing his March 2008 claim, to include reporting anxiety in his May 2008 VA examination. Further, a December 2020 private physician opined that the symptoms the Veteran endorsed during a doctor's visit shortly after service were early manifestations of trauma-based illness. Thus, the Board finds that the Veteran's March 19, 2008, claim should have been considered a petition to reopen the June 1973 claim. As the Board finds that the Veteran's March 2008 claim was a petition to reopen the June 1973 claim, the issue at hand is whether the service records that were made part of the file since the March 1975 prior final denial are to be considered "new and relevant" under the scope of 38 C.F.R. § 3.156(c). The Board finds they do not. In accordance with the October 2021 JMPR, the Board must consider the recently amended decision in Kisor v. McDonough 995 F.3d 1347 (Fed. Cir. 2021). For background, in Kisor, the Veteran filed a claim for PTSD in December 1982 claiming he had combat participation in Operation Harvest Moon during the Vietnam war. Following a VA examination in which the examiner found the Veteran suffered from a personality disorder and not PTSD, the RO denied the claim in a May 1983 rating decision. The Veteran filed a request to reopen his claim on June 5, 2006. During that time, newly submitted personnel records, which confirmed his service in Operation Harvest Moon, were of record that had not been at the time of the May 1983 denial. The claim was granted with an effective date of June 5, 2006, and the Veteran appealed the decision as to the effective date. In an April 2014 Board decision, the Board found that while the service records confirmed the Veteran's service in Operation Harvest Moon, they were not relevant for the purposes of 38 C.F.R. § 3.156(c)(1). The Board found that the basis of the previous denial was due to lack of a current diagnosis of PTSD, and not whether the Veteran engaged in combat. The Veteran appealed to the Court, which affirmed the Board's decision. The Veteran then appealed to the Federal Circuit. The Federal Circuit affirmed the Court's decision and held that the term "relevant" under 38 C.F.R. § 3.156(c)(1) was ambiguous and deferred to the Board's reasonable interpretation pursuant to Auer v. Robbins, 519 U.S. 452, 461 (1997) (holding that a federal court may defer to an agency's reasonable reading of its own genuinely ambiguous regulations). The case was appealed to the Supreme Court and was subsequently remanded back to the Federal Circuit. The Federal Circuit found while the term "relevant" is not defined in the regulation, the context of 38 C.F.R. § 3.156(c) makes clear that the additional records must speak to the basis for VA's prior decision. Id. The Federal Circuit further determined that relevant evidence is evidence that must tend to prove or disprove a material fact. See AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013); see also Black's Law Dictionary (10th ed. 2014) (defining "relevant" as "[l]ogically connected and tending to prove or disprove a matter in issue"). Evidence that does not tend to prove a fact that is of consequence to the action is not relevant. Lastly, the Federal Circuit agreed with the Board's determination that records were not relevant consistent with Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014) (holding that 38 C.F.R. § 3.156(c) applies when VA receives official records that were previously unavailable, and those records lead VA to award a benefit that was not granted in the previous decision). Similarly, like in Kisor, the Veteran contends that the newly added personnel records are relevant under 38 C.F.R. § 3.156(c) due to the records confirming the Veteran's combat experience in the Republic of Vietnam. However, the basis of the previous denial was not that the Veteran's combat experience could not be confirmed. The Board's March 1975 denial was based on the finding that the Veteran did not have any in-service complaints of a nervous condition and the evidence did not show his condition manifested during service or was aggravated by his wartime service. The Board further notes that at the time of the decision, the Veteran's DD-214 was of record, which showed he received the Combat Infantry Medal and Vietnam Service Medal. The Veteran's DD-214 being of record is evidenced by the Veteran's September 1971 application for program of education and training where he checked yes to attaching his DD-214 and requested his DD-214 be eventually returned to him. The Veteran's service treatment records were also of record, as indicated by a stamp indicating it was received in July 1973. At no time during the August 1973 rating decision, the April 1974 rating decision, or the March 1975 Board decision, did the Board or the RO contend that the Veteran did not have qualifying combat experience. Thus, the Veteran's combat status was not at issue at the time of the prior final denial and the added service personnel records did not tend to prove or disprove a material fact. 38 C.F.R. § 3.156(c); See also AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013). Moreover, the May 2014 grant of service connection was not based on the newly submitted service personnel records but was primarily based on the record showing complaints of anxiety and nervousness shortly after service, as well as a May 2014 expert opinion which found the Veteran's PTSD and major depressive disorder were related to his service, to include due to the Veteran's long history of anxiety and depression. In the expert's finding that the Veteran's psychiatric conditions were related to his service, the expert relied on the report from the Veteran's private physician stating the Veteran was seen for anxiety and nervousness in 1968, which the Board notes was of record at the time of March 1975 denial and is noted within that decision. Therefore, the Board finds the added service personnel records are not "relevant" under 38 C.F.R. § 3.156(c), Kisor, nor Blubaugh. See Kisor v. McDonough 995 F.3d 1347 (Fed. Cir. 2021). See also Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). The Board acknowledges the contention made by the Veteran's representative in the December 2020 Appellate Brief, which argued that the previous denial was based on whether there was a current diagnosis and whether such diagnosis was related to service. However, while the March 1975 Board decision did rely on the July 1973 examination not finding a psychiatric condition, the decision did not state the Veteran did not have a current diagnosis, but rather that no diagnosis in service or at the July 1973 examination was evidence that his condition had not incurred in or was aggravated by service. Further, even if such contentions were at issue, the Board notes that the added personnel records did not show any diagnosis for a psychiatric condition, treatment for such condition, nor did the records provide an opinion relating any psychiatric condition to his service. Therefore, reconsidering the claim back to July 1973 would still not be warranted under the regulation. 38 C.F.R. § 3.156. The Board also acknowledges the contention in the February 2022 Appellate Brief, which further argues that the Veteran's additional service personnel records are relevant as it formed the basis of the June 2013 Board decision, which conceded the Veteran's in-service stressors. However, there is no evidence that the May 2014 Board decision was based on the June 2013 Board's finding of in-service stressors, as the Board did not discuss the June 2013 Board decision within the analysis for its grant of service connection. The Board recognizes that the Veteran's representative has additionally argued that the May 2014 Board decision noted the Veteran's reported combat stressors "are consistent with the nature of his documented service." However, as mentioned above, the basis of the Board's May 2014 decision was primarily based on the reported symptoms shortly after service and the May 2014 expert opinion. Further, the Board reiterates that the Veteran's DD-214 had already confirmed the Veteran's combat service and his military occupational specialty, and therefore, corroborated the stressors consistent with his documented service. In fact, nowhere within the May 2014 Board decision does the Board address anything that was specifically, or only, within the newly added service personnel records. Lastly, as the Board finds that consideration under 38 C.F.R. § 3.156(c) is not warranted, the general regulation relating to effective dates applies. As provided above, under 38 C.F.R. § 3.400, the grant of service is the date of receipt of the claim, or the date entitlement arose, whichever is later. 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. Here, the March 1975 Board decision became final, as the Veteran did not appeal nor request a motion for reconsideration. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1100. Following the prior final decision, a claim to reopen was not filed until March 19, 2008, and thus, the effective date for his grant of PTSD cannot be before receipt of that application. Accordingly, the Board concludes that, as the evidence persuasively favors against an earlier effective date, it is not in approximate balance, and the benefit-of-the-doubt doctrine does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.