Citation Nr: 22019529 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 18-43 610 DATE: April 1, 2022 ORDER Entitlement to an effective date of November 12, 2004, for the grant of service connection for other specified trauma and stressor related disorder (psychiatric condition) is granted. FINDINGS OF FACT 1. The Veteran submitted a claim of entitlement to service connection for posttraumatic stress disorder (PTSD) in November 2004. 2. In an April 2005 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for anxiety disorder, claimed as PTSD, finding that the Veteran did not have a current diagnosis of PTSD and there was no evidence of a diagnosed anxiety or stress disorder during service. As the Veteran did not appeal or submit new and material evidence within the applicable appellate period, the decision became final. 3. In December 2014, the AOJ received an informal notice of intent to file a claim for benefits. 4. In December 2015, the AOJ received a VA Form 21-526EZ, seeking readjudication of the Veteran's claim of entitlement to service connection for PTSD. 5. Relevant official service department records were associated with the claims file in February 2016. 6. In a June 2016 rating decision, service connection for other specified trauma and stressor disorder was granted, effective December 14, 2015. The decision was based, in part, on the official service department records obtained in February 2016. CONCLUSION OF LAW The criteria for an effective date of November 12, 2004, for the grant of service connection for the Veteran's psychiatric condition, have been met. 38 U.S.C. §§ 1117, 1118, 5110, 7104; 38 C.F.R. §§ 3.114(a), 3.156 (c), 3.400(c). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1966 to February 1969. He received, inter alia, the Purple Heart Medal and is considered a combat veteran. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision issued by a Department of Veterans Affairs (VA) regional office. In September 2021, the Veteran testified via video conference before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. See September 2021 Board Hearing Transcript. As an initial matter, the Board notes that, during the pendency of this matter, in an April 2017 rating decision, an effective date of December 14, 2014, was assigned for the grant of service connection for the Veteran's psychiatric condition. As this does not represent a total grant of benefits sought on appeal, the claim for an earlier effective date remains before the Board. See AB v. Brown, 6 Vet. App. 25 (1993). Entitlement to an effective date of November 12, 2004, for the grant of service connection a psychiatric condition, is granted. Factual and Procedural Background. In November 2004, the Veteran filed a claim of entitlement to service connection for, inter alia, PTSD. See November 2004 VA Form 21-526. In March 2005, the Veteran was afforded a VA examination, in which the examiner noted a diagnosis of anxiety disorder, but concluded that the Veteran did not meet the full diagnostic criteria for PTSD. See March 2005 VA Initial PTSD Disability Benefits Questionnaire (DBQ). In an April 2005 rating decision, the AOJ denied service connection for anxiety disorder, claimed as PTSD; the decision identified service personnel records, received in November 2004, as having been considered in the decision. The Veteran did not appeal the decision and accordingly that decision became final. 38 C.F.R. § 20.1103. In December 2014, the Veteran submitted an informal intent to file a claim for benefits. See December 2014 VA Form 21-4138. In December 2015, the Veteran filed a claim seeking, inter alia, readjudication of his claim of entitlement to service connection for PTSD. See December 2015 VA Form 21-526EZ. In February 2016, additional service personnel records were associated with the claims file. See February 2016 Service Personnel Records. In a June 2016 rating decision, service connection was granted for other specified trauma and stressor disorder, effective December 14, 2015; the Veteran's service personnel records were identified as having been considered in the decision. In the April 2017 rating decision, finding that a clear and unmistakable error was made in the June 2016 rating decision, service connection was granted for other specified trauma and stressor disorder, effective December 14, 2014. Thereafter, in January 2018, the Veteran submitted a notice of disagreement (NOD) seeking an earlier effective date for his service-connected psychiatric condition. The appeal was ultimately perfected and is the matter currently before the Board. Analysis. The Veteran contends that an earlier effective date is warranted for the grant of service connection for his psychiatric condition. Specifically, the Veteran contends that the effective date should be November 12, 2004, the date of his original application for service connection. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the later of the day following separation from active service or the date entitlement arose if the claim 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). Additionally, when a veteran submits a claim to reopen a previously denied claim, and such claim is subsequently reopened and allowed, absent a claim of a clear and unmistakable error (CUE) in a prior final decision, and showing thereof, the effective date of the award of disability compensation shall be the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(r); Leonard v. Nicholson, 405 F. 3d 1333, 1337 (Fed. Cir. 2005). However, 38 C.F.R. § 3.156(c) provides an exception to this general rule. Under 38 C.F.R. § 3.156(c)(1), if at any time 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 decided the claim, VA will reconsider the claim. Section 3.156(c)(3) provides that if newly received, relevant service department records form all or part of the basis for the award of a benefit, then the effective date for such award is the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions applicable to the previously decided claim. See Blubaugh v. McDonald, 773 F.3d 1310, 1313 (noting that the purpose of 38 C.F.R. § 3.156(c) is to place a claimant in the position they would have been had VA considered the relevant service department record before the disposition of the earlier claim). As noted above, the Veteran's claim of entitlement to service connection for a psychiatric condition was initially denied in an April 2005 rating decision. At the time of this decision, only excerpts of the Veteran's service personnel records, totalling five pages, had been associated with the claims file. See Service Personnel Records, received December 2004. Thereafter, additional service personnel records were associated with the claims file in February 2016. See Service Personnel Records, received February 2016. As such, the requirements of 38 C.F.R. § 3.156(c)(1) had been met and reconsideration of the claim was warranted. With respect to the applicability of 38 C.F.R. § 3.156(c)(3), both the June 2016 rating decision that initially granted service connection for the Veteran's psychiatric condition, and the April 2017 rating decision on appeal, identified the Veteran's service personnel records as having been considered in formulating the respective decisions. Therefore, 38 C.F.R. § 3.156(c)(3) applies. The Board acknowledges that the evidence of record does not reveal a diagnosis of other specified trauma and stressor related disorder until May 12, 2016. See May 2016 VA Initial PTSD DBQ. However, as discussed above, the Veteran submitted a claim of entitlement to service connection for PTSD in November 2004, evidencing an onset of symptomatology. See November 2004 VA Form 21-526. Additionally, though a March 2005 VA examiner provided a diagnosis of anxiety disorder, a December 2015 private examiner noted that anxiety was a symptom of his current psychiatric condition. See March 2005 VA Initial PTSD DBQ; December 2015 Private Review PTSD DBQ. Moreover, in opining that the Veteran's psychiatric condition was at least as likely as not related to his active duty service, the May 2016 examiner relied, in part, on both the March 2005 VA examination and December 2015 private examination. See May 2016 VA Medical Opinion DBQ. As such, the Board finds that the Veteran's March 2005 examination report evidenced an onset of symptomatology associated with his service-connected psychiatric condition, which is the date entitlement arose and later than the date of claim in November 2004. Based on the above, the Board finds that an effective date of March 22, 2005, for the award of service connection for the Veteran's psychiatric condition, is warranted, and the Veteran's claim of entitlement to an earlier effective date is granted. See 38 C.F.R. §§ 3.114(a), 3.156(c), 3.317, 3.400. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. T. Martin III, 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.