Citation Nr: A24024924 Decision Date: 05/13/24 Archive Date: 05/13/24 DOCKET NO. 200218-70276 DATE: May 13, 2024 REMANDED Entitlement to an effective date prior to October 28, 2019 for service connection for posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1981 to September 1984 and from January 1991 to May 1991. The case is on appeal from a December 2019 rating decision in which service connection for PTSD was granted effective October 28, 2019. The Veteran then filed a VA Form 10182 in February 2020 to appeal the claim to the Board's Hearing Docket. In February 2024, the Veteran testified at a Board hearing. Thus, the Board will review the evidence of record at the time of the December 2019 rating decision on appeal and any evidence received at or within 90 days after the Board hearing. 38 C.F.R. § 20.300, 20.302. Entitlement to an effective date prior to October 28, 2019 for service connection for PTSD The Board finds that a remand is necessary for the agency of original jurisdiction (AOJ) to consider the assignment of an effective date pursuant to 38 C.F.R. § 3.156(c)(3). See 38 C.F.R. § 20.802(a) (permitting the Board to remand a claim for VA to fulfill a regulatory duty if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim). Specifically, a remand is needed for the AOJ to consider whether the grant of service connection for PTSD was based all or in part on the service department records first obtained in May 2019. 38 C.F.R. § 3.156(c)(3). At any time after VA issues a decision on a claim, when VA receives 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, notwithstanding the need to present new and relevant. 38 C.F.R. § 3.156(c)(1); see also Blubaugh v. McDonald, 773 F.3d 1310 (2014). If service connection is granted based all or in part of these newly received records, service connection will be effective from 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 law and regulation. 38 C.F.R. § 3.156(c)(3). The record reveals that the December 2019 rating decision in which service connection for PTSD was granted stems from a special review of the Veteran's file by the AOJ initiated on February 28, 2019. As part of this review, the Veteran's military personnel records were received in May 2019. The Veteran was afforded a VA examination of her PTSD on October 28, 2019, the current effective date for service connection for PTSD. The examiner opined that service connection was warranted based on the Veteran fearing for her life during missile alarms when serving in Saudi Arabia and due to military sexual trauma (MST). The record at the time of the prior denials of service connection for PTSD did note the Veteran's service in Southwest Asia. Further, the examiner, in providing a nexus opinion, noted that there was no record of the assault in service department records and no marker that the assault occurred in service treatment records. Thus, based on the current record, it is unclear to the Board whether (and if so why) the military personnel records received in May 2019 triggered the AOJ to request a PTSD examination for the Veteran. The claim was previously denied in the March 2016 rating decision because, while the Veteran had a diagnosis of PTSD, there was no evidence of markers of MST, such as evidentiary signs, events, or circumstances indicating a possibility that the claimed stressor occurred. The Veteran refiled for service connection in April 2017. A May 2017 VA examination found that she had a diagnosis of unspecified depressive disorder, and a negative medical opinion was obtained. However, the AOJ and May 2017 VA examiner did not consider the prior diagnosis of PTSD. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (finding that the Board should have considered an in-service diagnosis of adjustment disorder a few months prior to when the Veteran filed his claim for service connection). Because there had already been a diagnosis of PTSD, if the service department records obtained in May 2019 reveal evidence to corroborate the Veteran's cited PTSD stressor, those service department records would be relevant to the grant of service connection for PTSD and an earlier effective date would be warranted. Kisor v. Wilkie, 969 F.3d 1333 (Fed. Cir. 2020). However, the Board at this time cannot discern what information in the service department records is relevant to the grant of service connection, and it is unclear whether the AOJ applied 38 C.F.R. § 3.156(c)(3) in assigning the effective date for service connection for PTSD. Further, in assessing whether an earlier effective date is warranted under 38 C.F.R. § 3.156(c), the AOJ is directed to consider when entitlement for service connection first arose. The earliest rating decision issued in January 2009 denied service connection for lack of a confirmed diagnosis of PTSD. However, the Veteran was being treated for other acquired psychiatric disorders. For instance, an April 2008 VA treatment record notes a diagnosis of dysthymic disorder. The Veteran was hospitalized in August 2011 at Brookwood Baptist Medical Center for depression and suicidal ideation, citing many work stressors and living alone. A diagnosis of major depression was noted. The Veteran was again hospitalized in October 2015 for depression with suicidal ideation. Again, this past psychiatric treatment might reveal that the Veteran may have had PTSD much earlier than the current effective date of service connection for PTSD. On remand, the Board will ask an examiner to provide a medical opinion addressing this inquiry. See also Clemons v. Shinseki, 23 Vet. App. 1 (2009). Finally, relevant to this determination, the Board notes that private treatment records might also be outstanding. For instance, an April 2008 VA treatment record notes that the Veteran had been seen by a Dr. C. at Greyson & Associates for many years. Further, very few records from the Veteran's 2011 hospitalization at Brookwood Baptist Medical Center are of record. The AOJ should attempt to obtain these records, after receiving any necessary authorization from the Veteran. The matter is REMANDED for the following actions: 1. Ask the Veteran to authorize VA to obtain, or otherwise provide to VA, any outstanding private treatment records relevant to her PTSD that might confirm a diagnosis of PTSD prior to October 2019, in particular those from Dr. C. at Greyson & Associates and Brookwood Baptist Medical Center. 2. After completing the above, and allowing time for a response, obtain a medical opinion regarding the nature of the Veteran's acquired psychiatric disorders prior to October 2015. Specifically, the examiner should opine as to whether: It is at least as likely as not that, although diagnosed as various depressive-type disorders at the time, the Veteran had PTSD prior to October 2019. A complete rationale should be provided for any opinion rendered. Please consider the Veteran's treatment in and around April 2008 for dysthymic disorder and August 2011 and October 2015 hospitalizations. ? 3. Based on the evidence of record, assign an effective date for service connection for PTSD in accordance with 38 C.F.R. § 3.156(c) and Kisor. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. George 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.