Citation Nr: 22018015 Decision Date: 03/27/22 Archive Date: 03/27/22 DOCKET NO. 20-29 907 DATE: March 27, 2022 ORDER Entitlement to an effective date prior to September 30, 2014, for the grant of service connection for unspecified trauma and stressor-related disorder, is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for unspecified trauma and stressor-related disorder is remanded. FINDINGS OF FACT 1. A February 1964 rating decision denied service connection for nervousness; the Veteran was notified of the decision and did not file a notice of disagreement or submit new and material evidence within the following one-year appeal period. The decision became final. 2. A September 1977 VA administrative letter informed the Veteran that the evidence he had submitted did not constitute new and material evidence to reopen the claim of service connection for a nervous condition; the Veteran did not submit a substantive appeal to perfect his appeal, and the administrative decision became final. 3. On September 30, 2014, VA received the Veteran's VA Form 21-526EZ seeking service connection for [military sexual trauma/posttraumatic stress disorder]; the record does not show any claims received or pending between the September 1977 administrative letter and September 30, 2014. CONCLUSION OF LAW The criteria for an effective date prior to September 30, 2014, for the grant of service connection for unspecified trauma and stressor-related disorder, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1960 to October 1962. The Board thanks him for his service to our country. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded these claims on appeal for the issuance of a statement of the case. There has been substantial compliance with the remand. Stegall v. West, 11 Vet. App. 268 (1998). Regrettably, the Veteran's claim for a higher initial rating requires another remand for additional development. The Board recognizes the time that the Veteran has devoted to this appeal process and appreciates his patience. The Veteran had been scheduled for a Board hearing with a Veterans Law Judge in January 2022, but the Veteran cancelled the hearing. Thus, the Board may proceed with adjudication on the issue of an earlier effective date. Entitlement to an effective date prior to September 30, 2014, for the grant of service connection for unspecified trauma and stressor-related disorder. The Veteran contends that the effective date of the award of service connection for unspecified trauma and stressor-related disorder should be earlier than September 30, 2014. A January 2022 brief submitted on the Veteran's behalf notes that the Veteran's claim was originally denied by a February 1964 rating decision on the basis that his mental health disorder was congenital, and subsequently, his petition to reopen his claim was denied in a March 1977 VA letter on the basis that it was denied in 1964. The Veteran's representative argues his military personnel records were not associated with the evidentiary record at the time of the original claim. They were associated with the claims file in July 2015 and that these service records contain evidence used to establish the Veteran's military sexual trauma (MST) stressor event. Under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q). Thus, once a previous rating decision has become final, the earliest effective date of service connection generally is the date of the petition to reopen rather than the date of the initial claim. Id. An exception to this rule is set forth in 38 C.F.R. § 3.156(c), which states that a final decision will be reconsidered when 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the evidence is persuasively against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this case, after the final September 1977 VA decisional letter, the Veteran filed a notice of disagreement and was then provided a statement of the case. However, he, did not submit a substantive appeal to perfect his appeal, and thus, the decision became final. 38 C.F.R. §§ 19.32, 20.1103. Thereafter, VA did not receive a formal or informal petition to reopen the previously denied claim of entitlement to service connection for a nervous condition prior to the VA Form 21-526EZ seeking service connection for MST/posttraumatic stress disorder (PTSD) claim on which the currently assigned effective date is based on. Applying the governing law and regulation to this case, the earliest possible effective date the Veteran may receive for service connection for unspecified trauma and stressor-related disorder is September 30, 2014, the date of receipt of his VA Form 21-526EZ. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q). The Board has considered the representative's argument regarding the receipt of additional service records. On review, at the time of the February 1964 rating decision and September 1977 VA decisional letter, the Veteran's VA claims file included his service treatment records. The basis for the February 1964 denial was that the Veteran did not show "evidence of a psychosis or psychoneurosis." This indicated that the Veteran did not have a current diagnosis of a psychosis or psychoneurosis at the time. In July 2015, service personnel records and additional service treatment records were received that were not in the record at the time of the February 1964 rating decision or the 1977 decisional letter. On review, however, the additional service treatment records were solely administrative records and consisted of a cover letter to the Veteran's Report of Board of Medical Survey and a Standard Transfer Order. These administrative records did not include any medical evidence or findings. The service personnel records did not include any evidence relevant to the Veteran's psychiatric disability. The additional administrative service treatment records and the service personnel records were not relevant to the Veteran's service connection claim because they did not address a factual issue that was dispositive against his claim in the prior VA adjudications, which is, to show toward an element in dispute. See Kisor v. McDonough, 995 F.3d 1347 (Fed. Cir. 2021); Blubaugh v. McDonald, 773 F.3d 1310, 1314 (Fed. Cir. 2014); see also February 1964 rating decision. Here, the Veteran's emotional condition (i.e., complaints of or treatment for nervousness during service) was already considered at the time of the previously final February 1964 rating decision. These added service records did not address a factual issue that was dispositive against his claim in the prior VA adjudications. Moreover, neither the August 2015 VA Initial PTSD examination report that provided a positive nexus opinion nor the August 2015 rating decision that granted service connection for unspecified trauma and stressor-related disorder made any reference to the administrative service treatment records or service personnel records added in July 2015 or relied on them in any way. In this regard, the August 2015 examination report referred to behavioral markers that occurred after the Veteran's discharge from service through the early 1980s. For these reasons, the representative's argument fails. Therefore, the additional service records were not pertinent to the reopening and granting of the Veteran's service connection claim and, thus, reconsideration of the claim for service connection for nervousness or for a nervous condition is not warranted, pursuant to 38 C.F.R. § 3.156(c)(3). In light of the above, the Board finds that an effective date earlier than September 30, 2014, for the grant of service connection for unspecified trauma and stressor-related disorder is not warranted and must be denied. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable, and an earlier effective date is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an initial rating in excess of 30 percent for unspecified trauma and stressor-related disorder is remanded. The Board remands this issue to conduct a VA examination for current findings. See 38 C.F.R. § 3.327(a). On his September 2020 VA Form 9, the Veteran assserted that the progression of this disability had gotten worse over time, it was evaluated incorrectly, and the 30 percent rating was not accurate for what he is dealing with today. A January 2022 brief submitted on the Veteran's behalf cited evidence in the record and stated that another VA examination was warranted to determine the current severity of the Veteran's disability since the VA examination over six years earlier may not adequately illuminate the issue. The most recent VA examination for this disability was conducted in August 2015. As such, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of this disability. The matter is REMANDED for the following action: (Continued on the next page) Please schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his unspecified trauma and stressor-related disorder. The examiner is asked to review the claims file. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. M. Tang Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.