Citation Nr: 22018642 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 11-21 248A DATE: March 30, 2022 ORDER Entitlement to an effective date earlier than December 22, 2008 for the award of service connection for posttraumatic stress disorder (PTSD) with obsessive compulsive disorder, panic disorder, and paranoid personality disorder, is denied. FINDINGS OF FACT 1. A July 2003 rating decision by the Department of Veteran's Affairs (VA) Agency of Original Jurisdiction (AOJ) denied service connection for PTSD. The Veteran did not appeal or submit new and material evidence within a year of the rating decision; thus, that decision became final. Later, the Veteran filed a new claim for service connection for PTSD, received by VA on December 22, 2008; this is the date entitlement to service connection for PTSD arose. 2. The Veteran's service records were received after the July 2003 rating decision, but are not relevant to the July 2003 rating decision. CONCLUSION OF LAW The criteria for an effective date earlier than December 22, 2008 for the award of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.157 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1983 to May 1990. The history of this appeal is extensive. Most recently, the Veteran appealed an April 2020 Board of Veterans' Appeals (Board) decision denying entitlement to an effective date earlier than December 22, 2008 for the award of service connection for PTSD. Originally, in a March 2021 Memorandum Decision, the Court of Appeals for Veterans Claims (Court) affirmed the Board's decision; however, the Veteran timely filed a motion for reconsideration. In a subsequent June 2021 Memorandum Decision, the Court vacated the April 2020 Board decision and remanded the appeal. The claim is now back before the Board. Generally, the effective date of an award of service connection will be the date of receipt of the claim or the date entitlement arose, whichever date is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of receipt for any claim is the date the claim was received by VA. 38 C.F.R. § 3.1(r). Originally, the Veteran filed a claim for service connection for PTSD in September 2002, which the AOJ denied in a July 2003 rating decision. The Veteran did not appeal or submit new and material evidence within a year of the rating decision; thus, the July 2003 rating decision became final. See 38 C.F.R. §§ 3.156, 20.1103. Then, in December 2008, the Veteran filed to reopen his claim for entitlement to service connection for PTSD and the claim was continuously pursued until a November 2014 Board decision granted service connection. The Veteran's claim was received by VA on December 22, 2008; this is the date the AOJ granted entitlement to service connection under 38 C.F.R. § 3.400. See November 2014 rating decision. However, 38 C.F.R. § 3.156(c) provides an exception to 38 C.F.R. § 3.400. At 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. See 38 C.F.R. § 3.156(c)(1). Applied to this Veteran's case, if VA received relevant service records after the July 2003 rating decision, that were not previously associated with the claims file at the time of the July 2003 rating decision, the Veteran's claim will be reconsidered rather than being reopened. Id. If the Board finds relevant service records were added to the casefile after the July 2003 rating decision, the Veteran may then be entitled to an effective date on the date entitlement arose or the date VA received the previously decided claim, whichever is later. See 38 C.F.R. § 3.156(c)(3). The Veteran contends he should be entitled to an effective date of September 9, 2002, the date VA received his original claim for service connection for PTSD. See February 2015 notice of disagreement (NOD). Specifically, he contends the AOJ did not have service records in its possession at the time of the July 2003 rating decision that verified the Veteran's service in Bolivia. Id.; see also June 2021 Memorandum Decision. First, the Board must consider whether relevant service records were added to the claims file after the July 2003 rating decision. See 38 C.F.R. § 3.156(c)(1). For the purposes of 38 C.F.R. § 3.156(c)(1), a relevant service record must address a factual issue that was dispositive against the Veteran in the prior VA adjudication. See Kisor v. Wilkie, 969 F.3d 1333, 1338-39 (2020); see also Kisor v. McDonough, 995 F.3d 1347, 1348 (2021). In other words, the record must speak to a matter in issue or dispute at the July 2003 rating decision. Id. Although the July 2003 rating decision noted the Veteran's in-service medical and personnel records from March 1983 through May 1990 were considered, these records do not appear in the claims file until after the July 2003 rating decision and were not discussed within the rating decision itself. The Board finds the service records, therefore, were added after the July 2003 rating decision. Then, the main question is whether the Veteran's service records were relevant to the July 2003 rating decision. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Within the legal framework for evaluating claims of service connection for PTSD, the sufficiency of a stressor is a medical determination, while the occurrence of the stressor is a legal determination. Sizemore v. Principi, 18 Vet. App. 264 (2004). At the time of the July 2003 rating decision, the AOJ noted that although the occurrence of the Veteran's claimed stressor was verified regarding traumatic events in Panama, the record did not reflect a medical diagnosis of PTSD, which ultimately represents two of the three required elements for service connection, a current diagnosis and a medical nexus connecting it to his in-service event. The Board must now look at the service records added to the claims file after the July 2003 rating decision. Service treatment records (STRs) noted continued treatment for pseudofollicular barbae, along with eye and dental treatment. Military personnel records (MPRs) noted the Veteran served in "South America Central America- Panama" from September 1987 to May 1990. During this time, he received recognition for outstanding performance in Bolivia in October 1989 and for participation in Operation Just Cause in Panama from December 1989 to January 1990. See MPRs. His MPRs reflect numerous recognitions for exemplary conduct, including good conduct medals and positive reviews. One March 1988 Army letter noted the Veteran was evaluated for job-related stress on five occasions in March 1988 while at Fort Kobbe, Panama; it was determined "there was no evidence of a condition or defect" and the Veteran was diagnosed at the time with an "occupational problem" and "antisocial personality traits." These service records, included in the claims file after the July 2003 rating decision, do not speak to a matter in dispute or issue at the July 2003 rating decision. For example, the March 1988 Army letter noted the Veteran did not have a psychiatric diagnosis. More importantly, service records did not address whether the Veteran had an acquired psychiatric disorder during the appeal period in question, prior to July 2003. Additionally, the service records do not even suggest a nexus or provide additional evidence that a clinician could review to provide a relevant opinion. At the July 2003 rating decision, the Veteran's claimed in-service stressor with Operation Just Cause in Panama was verified. The service records added to the claims file after the July 2003 rating decision were not relevant as they did not address a factual issue that was dispositive against the Veteran at the time of the June 2003 rating decision; the service records did not address a current medical diagnosis or a medical nexus between a current condition and his verified in-service stressor. Thus, the Board finds the service records were not relevant. Since the service records were not relevant, the Veteran's claim cannot be reconsidered as directed under 38 C.F.R. § 3.156(c)(1) as it does not apply. Instead, the Veteran's claim for service connection for PTSD, received by VA on December 22, 2008, was a claim to reopen the previously finalized claim decided by the AOJ in the July 2003 rating decision under 38 C.F.R. § 3.156(a). After the July 2003 rating decision, there is no evidence of record that the Veteran filed any formal or informal claim for benefits prior to his December 2008 claim. As noted above, the claim was continuously pursued until a November 2014 Board decision granted service connection. As the Veteran's claim was received by VA on December 22, 2008, this is the proper effective date for the award of service connection under 38 C.F.R. § 3.400. The Board notes the Veteran's contention that MPRs reflecting service in Bolivia are relevant because the November 2011 Dr. D.W. examination report noted the Veteran's service in Bolivia while discussing a positive nexus between the Veteran's current PTSD and in-service stressor. However, the Court made clear in Kisor that relevant service records must address a factual issue that was dispositive against the Veteran in the prior VA adjudication. See Kisor, 969 F.3d at1338-39; see also Kisor, 995 F.3d at 1348. The Veteran's service in Bolivia has no relevance to the July 2003 rating decision denying service connection for PTSD. Additionally, evidence submitted by the Veteran and provided in VA treatment records and VA examination reports prior to the July 2003 rating decision reflect the Veteran sought service connection for PTSD based on in-service events in Panama, not Bolivia. See, e.g., February 2001 VA treatment records; March 2003 VA examination report; May 2003 VA treatment records. For example, the Veteran's September 2001 original claim for "back, PTSD, and unemployable Panama Just Cause" noted "lots of stress during Panama Just Cause" and later noted Bolivia was "where I began to have extreme headaches. We were anywhere from 15,000 to 17,000 feet above sea level. I have since been informed that altitudes of this height can cause brain to swell." This contention regarding Bolivia was not further mentioned in the record. Additionally, the Veteran's January 2003 VA Form 21-0781 described his in-service stressors and strictly discussed events during his service in Panama. Thus, the record does not reflect that the Veteran's service records related "'directly or indirectly' to his non-diagnosis of PTSD," which was the basis for VA's prior July 2003 rating decision. See Kisor, 995 F.3d at 1364. In summation, the Board has considered the Veteran's contentions and found reconsideration of the Veteran's original claim under 38 C.F.R. § 3.156(c)(1) does not apply as his service records are not relevant to the July 2003 rating decision. Accordingly, the AOJ assigned the earliest possible effective date provided by law, and the Board denies the Veteran's claim to an effective date earlier than December 22, 2008 for the award of service connection for PTSD. 38 C.F.R. § 3.400. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, Associate 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.