Citation Nr: 25004808 Decision Date: 04/09/25 Archive Date: 04/09/25 DOCKET NO. 12-21 316 DATE: April 9, 2025 ORDER Entitlement to an effective date earlier than August 27, 2009, for the grant of service connection for post-traumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. February 1992 and October 1998 claims for benefits did not reasonably raise a claim for a psychiatric disorder for which compensation may be paid, to include PTSD. 2. An October 1998 claim for benefits did not reasonably raise a request to reopen a claim for service connection for a personality disorder. 3. A claim for service connection for PTSD was not raised until August 27, 2009. 4. In an October 2009 rating decision, the RO granted service connection for PTSD effective from August 27, 2009, the date on which the claim for service connection was received. 5. The Veteran did not submit a claim seeking service connection for PTSD prior to the date of receipt of his formal claim on August 27, 2009. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than August 27, 2009, for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.106, 3.155, 3.158, 3.400, 3.655. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1989 to January 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2014, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In September 2022, the Board denied entitlement to an effective date earlier than August 27, 2009, for the grant of service connection for PTSD. The Veteran appealed the Court of Appeals for Veterans Claims (CAVC). In June 2024, CAVC issued a memorandum decision setting aside the September 2022 Board decision and remanding the claim for further adjudication. The decision concluded that the Board did not ensure substantial compliance with CAVC's December 2021 remand order. The prior December 2021 Court order determined the July 2019 Board decision provided an inadequate Statement of Reasons or bases for concluding that "VA was not required to adjudicate the antisocial personality disorder claim in the March 1999 decision." CAVC noted in its prior December 2021 decision that the Veteran's August 1998 application for benefits listed a set of symptoms he experienced and not a specific condition for which he was seeking service connection. The Court stated that the March 1999 rating decision treated the filing as a claim to reopen the February 1992 rating decision. The VA had determined that new and material evidence had not been submitted to reopen the claim for a right knee condition. CAVC further stated that (1) the RO did not adjudicate the reopening of the Veteran's antisocial personality disorder claim as part of the March 1999 rating decision; (2) there is no evidence indicating that the Agency ever adjudicated a claim to reopen his antisocial personality disorder claim at any time; and (3) the Board failed to cite any evidence supporting a conclusion that "VA was not required to adjudicate [the appellant's antisocial personality disorder claim] in its March 1999 decision." . The Court further stated that in the September 2022 Board decision on appeal, the Board disregarded the Court's remand instruction and again failed to address whether the March 1999 rating decision, or the Agency at any point following that decision, adjudicated the appellant's 1998 request to reopen his antisocial personality disorder claim. Thus, the claim was remanded to the Board to address these findings. Entitlement to an effective date earlier than August 27, 2009, for the grant of service connection for PTSD. The Veteran believes that he is entitled to an effective date prior to August 27, 2009, for the grant of service connection for PTSD. During the August 2014 Board hearing, the Veteran stated that his effective date should be backdated to when he first filed for service connection for a personality disorder in February 1992. He believes that he had PTSD during that time. Alternatively, he asserts that the effective date should extend back to a claim for compensation he filed in 1998. Law and Regulations Unless Chapter 38 of the United States Code specifically provides otherwise, the effective date of an evaluation and grant of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An earlier effective date may be granted prior to the date of the filing of the claim for a rating increase if it is ascertainable that an increase in the disability occurred within one year prior to the filing of the claim. See 38 U.S.C. § § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). A "claim" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). "Date of receipt" of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(b). Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2017). To establish a right to compensation, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a). Personality disorders are not "diseases" for which service connection can be granted, and as a "matter of law" are not compensable disabilities. 38 C.F.R. § 3.303 (c); Beno v. Principi, 3 Vet. App. 439, 441 (1992). However, a disability resulting from a mental disorder superimposed upon a personality disorder may be service-connected. 38 C.F.R. § 4.127. Similarly, direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301. A veteran's identification of the benefit sought does "not require any technical precision." Brokowski, 23 Vet. App. at 85. If a veteran claims service connection for a specific disorder, any disorder reasonably encompassed by the veteran's claim must be considered. Clemons, 23 Vet. App. at 5; Brokowski, 23 Vet. App. at 86-87. The scope of a claim should be construed based on the reasonable expectations of a non-expert, self-represented claimant, and the evidence developed during the claims process. Harris v. Shinseki, 704 F.2d 946, 948 (Fed. Cir. 2013). In giving a sympathetic reading to a veteran's claim, VA must "generously construe" a "veteran's filing to discern all possible claims raised by the evidence" and supporting documentation rather than just evaluate the diagnoses specifically named in the application. Id. The "sympathetic reading" requirement does not obligate the Board to conduct an exercise in prognostication, but only requires that it considers all claims reasonably raised by the evidence. See Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) (emphasis added). Thus, there must be some indication in a veteran's application that he or she wishes to raise a particular issue; the indication need not be expressed or highly detailed, it must only reasonably raise the issue. In Brokowski, the Court held that VA "is not required to anticipate a claim for benefits for disabilities that have not been identified in the record by medical professionals or by competent lay evidence at the time a claimant files a claim or during the claim's development." 23 Vet. App. at 88. Moreover, the Board "is not required to conjure up issues that were not raised by the appellant." Brannon, 12 Vet. App. at 35; see also Criswell, 20 Vet. App. at 503-04 ("[I]t follows logically that where there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised."). Evidence/Analysis In January 1992, the Veteran filed an application seeking service connection for a right knee condition and an antisocial personality disorder. The RO denied service connection for antisocial personality disorder in a February 1992 rating decision, because the evidence indicated the condition existed prior to service and was not aggravated beyond normal progression during service. The Veteran did not timely appeal this decision and it became final. 38 C.F.R. § 3.156. A notification letter was mailed to the Veteran on April 27, 1992. The Board has considered whether a reasonable VA adjudicator would have found that the Veteran's February 1992 filing for an antisocial personality disorder reasonably raised a claim for any acquired psychiatric disorder, to include PTSD. In doing so, the Board has considered the "claimant's description of the claim; the symptoms he describes; and the information the claimant submits or that the Secretary obtains in support of that claim." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). A VA adjudicator is not required to anticipate a claim for benefits for disabilities that have not been identified in the record by medical professionals or by competent lay evidence at the time that a claimant files a claim or during the claim's development. In Clemons, the Court held that a "claim for benefits based on PTSD encompassed benefits based on an anxiety disorder and (or) a schizoid disorder because the evidence developed during the processing of the claim indicated that the symptoms for which Mr. Clemons was seeking VA benefits may have been caused by an anxiety and (or) schizoid disorder." Clemons, 23 Vet. App. at 3. In Clemons, the appellant asserted that, although he filed a claim for benefits specifically for "PTSD," the Board should have considered medical evidence he submitted with his claim that showed he was diagnosed with another acquired psychiatric disorder. The Board finds that none of the factors which would raise a wider claim than simply a claim for a personality disorder under Clemons were present in this case. The November 1991 service treatment records reflect that the Veteran had a long-standing history of antisocial personality disorder behaviors stemming from childhood, which lead to the in-service diagnosis of antisocial personality disorder. The service medical records did not include a diagnosis of PTSD or any other psychiatric disorder other than a personality disorder and substance abuse. A service narrative summary dated in November 1991 clearly stated that the appropriate diagnosis was antisocial personality disorder. The Veteran specifically wrote antisocial personality disorder on his February 1992 VA Form 21-526EZ, but did not mention PTSD or any other psychiatric disorder. While his claim was pending, the Veteran did not submit any statements or any medical evidence suggesting he had a psychiatric disorder. He also did not describe any symptoms. There was also no post service evidence obtain by the VA in 1992 to indicate that the Veteran had ever been diagnosed with PTSD or any other psychiatric disorder. In light of the foregoing, the Board finds that the Veteran did not reasonably raise a claim for a psychiatric disorder, to include PTSD, in the context of his February 1992 filing for antisocial personality disorder. Therefore, entitlement to a date earlier than August 27, 2009, for the grant of service connection for PTSD is not warranted on that basis. In September 1998, the VA received a VA Form 21-526EZ which was signed by the Veteran on August 31, 1998. On the form, the Veteran wrote "foot, knee, ankle, back hurt. Headaches constantly, irritable, constantly tired, trouble with memory, can't concentrate." For the knee, he reported that it was treated during service in 1990 in Desert Storm. He did not provide a date of onset or treatment history for any of the other disabilities. The application included income and asset information for making a pension determination. On January 14, 1999, the RO mailed the Veteran a letter informing him that his claims for a right knee condition and antisocial personality disorder had previously been denied in a February 1992 rating decision, and the decision was final because he did not appeal it within one year. It was further noted that the denial would remain final unless new and material evidence was received to reopen his claims. The RO also noted that they had asked the VAMC in Chicago to schedule an examination for him, and requested that he send evidence of his earliest treatment following discharge from service for his claimed disabilities, as well as any evidence that links his claimed conditions to service. The letter further stated that if he has been asked to submit evidence, it should be submitted as soon as possible, preferably within 60 days from the date of the letter. In any case, the evidence must be received within one year from the date it was requested, otherwise if entitlement is established, benefits may not be paid for any date prior to the date the evidence was received. On January 14, 1999, the RO requested new VA examinations for mental disorders, chronic fatigue syndrome, feet, shoulders, wrists, elbows, hips, knees, spine, and muscles. The Veteran was evaluated in February 1999 at the VA examinations. On the chronic fatigue examination, the examiner diagnosed the Veteran with antisocial personality disorder, weight gain, arthralgias, recurrent headaches, fatigue, strep pharyngitis times 1, and decreased libido. The examiner specified that none of the above were consistent with a diagnosis of chronic fatigue syndrome. There were no notations about PTSD. In a separate VA mental disorders examination also dated in February 1999, the examiner concluded that no significant psychiatric disorders were found. In the report it was noted that he was not under psychiatric care and was not on psychotropic medication. His symptoms consisted of irritability, headaches, back pain, right knee pain, fatigue, sleep difficulties and some difficulty in concentration. But he denied depression, anxiety, and paranoia. He said that he had no psychiatric problems. At a February 1999 VA neurological examination, the Veteran reported severe fatigue and feeling a "true tiredness rather than excessive sleepiness." He indicated he experienced some sleeping difficulties, with occasional insomnia. Early on, in the course of these symptoms, he experienced frequent arousals, but did not now arouse. He reported memory difficulties, but was able to continue to take care of his day to day finances and work full time. The examiner noted tension headaches and fatigue of an unknown etiology (finding his symptoms did not meet strict criteria for chronic fatigue syndrome). The examiner further noted that with regard to his mental status, there was evidence of mild decreases in attention and concentration of unknown etiology but no evidence of a primary mental disturbance. The March 1999 rating decision did not found that no new and material evidence had been presented to reopen a claim for a knee disorder. That decision did not discuss any other disability. The Board finds that the Veteran did not raise a claim for PTSD when he submitted a claim in October 1998. On his October 1998 claim for compensation and pension, the Veteran described the nature and history of his disabilities in box 17 as painful feet, knees, ankles, and back; constant headaches; irritability; constantly being tired; and trouble with memory and concentration. The application form provides specific instructions which direct the applicant to skip boxes 19, 20, 21 if he or she is not claiming compensation for a service-connected disability. Box 19 provides space for the applicant to offer information regarding any treatment received during service for a claimed disability. In that space, the Veteran only indicated he hurt his knee in 1990 while involved in Operation Desert Storm. Box 20 provides space for the applicant to offer information about any civilian physician or hospital medical treatment received for the claimed conditions; the Veteran wrote "none" in that box. Box 21 provides space for the applicant to list persons other than physicians who knew any facts about any sickness, disease, or injury listed in box 19; the Veteran left that space blank. Because the Veteran failed to provide any additional disabilities in box 19 for which he was seeking service connection, aside from a knee injury, VA appropriately treated the Veteran's remaining claimed disabilities as a claim for nonservice-connected pension. The Board acknowledges that the Veteran was afforded a mental disorders examination by the VA in February 1999 and that an examiner concluded that no significant psychiatric disorder was present. Significantly, it was documented in the report that the Veteran specifically denied any history of psychiatric treatment. The Board notes that the evidence does not reflect the Veteran intended to file a claim for service connection for a psychiatric disorder, to include PTSD. Notably, the Court has specifically cautioned that general statements of intent "cannot be used as a pleading device to require the Secretary to conduct an unguided safari through the record to identify all conditions for which the veteran may possibly be able to assert entitlement to a claim for disability compensation." Brokowski v. Shinseki, 23 Vet. App. 79, 89 (2009). Although the Veteran reported symptoms at the time of his October 1998 filing which may now overlap with his current symptoms attributed to PTSD, he specifically denied past or present psychiatric history at the February 1999 examination, and the examiner specifically found no evidence of a psychiatric disorder, to include PTSD. Significantly, as noted above, VA "is not required to anticipate a claim for benefits for disabilities that have not been identified in the record by medical professionals or by competent lay evidence at the time a claimant files a claim or during the claim's development." Brokowski, 23 Vet. App. at 88. Not only does the Board find that the Veteran did not intend to file a claim for a psychiatric disorder in the context of his October 1998 filing, the Board also finds that in the course of adjudicating this claim that a reasonable VA adjudicator would not have found he reasonably raised a claim for a psychiatric disorder. Thus, the Board concludes that VA was not required to adjudicate this issue in its March 1999 decision. The Veteran did not describe any psychiatric history of symptoms at his February 1999 VA examination and actually explicitly denied a current or past history of psychiatric symptoms; the examiner found no diagnosis of a mental disorder. The Board acknowledges that the lack of a diagnosis is not dispositive of resolving the question of whether a claim was raised, but does note that it is pertinent, particularly as it is based on the Veteran's report of symptoms. In that regard, the Veteran's explicit denial at that examination of psychiatric history or current symptoms weighs heavily against a finding that he reasonably raised a claim for service connection for a psychiatric disorder. The fact that the Veteran was afforded a February 1999 VA mental health examination does not support a finding that a claim for PTSD was reasonably raised by the Veteran. It appears to the Board as the finder of fact that this exam was scheduled for the purpose of evaluating the Veteran's claim for nonservice-connected pension. Significantly, consideration must be given to the "claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Board emphasizes that VA proactively ordered a VA mental health examination in connection with the Veteran's vague reports of symptoms; however, the Veteran's description of his symptoms as noted in that report and the resulting finding of no diagnosed mental disorder support a finding that a claim for a psychiatric disorder was not reasonably raised. As noted in Clemons, there are many factors for consideration in this analysis and the Board finds that a reasonable VA adjudicator, looking at all the evidence of record at the time in the course of the October 1998 filing and up until the March 1999 rating decision, would not have concluded that the Veteran reasonably raised the issue of service connection for a psychiatric disorder. Thus, it was not required to be adjudicated in the March 1999 rating decision. The August 2018 Memorandum Decision also notes that the Veteran was ultimately granted service connection for PTSD in 2009 based on many of the same in-service symptoms, and that it was unclear why the scope of the Veteran's 1992 filing did not include a claim for PTSD. Similarly, in a February 2019 brief, the Veteran's attorney argued that the Board should not have denied the Veteran an earlier effective date benefits because he failed to use the phrase "PTSD" in a claim he filed without the assistance of counsel in 1992. The attorney felt that the Board's reasoning in its February 2017 vacated decision that the Veteran did not have combat-induced PTSD in 1992 or 1998 was inconsistent with its finding that the Veteran did have it in 2009. In support of this argument, the attorney pointed to a July 2012 VA examination report which indicates that the Veteran reported beginning to experience nightmares, night sweats, withdrawing from people, losing interest in activities he used to enjoy, and becoming more irritable. The Veteran also reported at that examination he was taught to be watchful and hypervigilant in military training and that this has continued since separating from the military. The examiner noted that "[w]ith alterations in mood beginning approximately the same time period in his life, it is difficult to determine whether or not the Veteran's symptoms are attributable to Bipolar I Disorder, PTSD, or a combination of both." Essentially, the attorney argues that the symptoms referenced at the 2012 VA examination were consistent with PTSD, the examiner could not exclude from consideration a finding that they were entirely attributable to PTSD, and therefore, the 1992 claim encompassed evidence of symptoms attributable to PTSD. Significantly, the Veteran's attorney relies heavily on the June 2012 VA examiner's conclusion that it is not possible to differentiate the Veteran's in-service symptoms from his current PTSD symptoms. The Board finds this argument is heavily clouded by a hindsight bias and emphasizes that the question of whether a claim for a psychiatric disorder was raised in the context of the February 1992 and October 1998 claims must be looked at based the available evidence at the time that claim was pending up until adjudication, not on all the evidence available to VA at present. Notably, the Veteran's reports of being watchful and hypervigilant since the military were not reported at his February 1999 VA mental health examination; moreover, while he acknowledged combat experience during service, he did not indicate to the 1999 examiner that he felt he had any psychiatric difficulties because of his combat experience or that he experienced psychiatric symptoms during and since service. In fact, in the context of developing his October 1998 claim, the Veteran did not claim current or past psychiatric symptoms, and explicitly denied them at the 1999 examination. The Board has appropriately looked at all the evidence of record during the adjudication of both the February 1992 and October 1998 claims and finds that the Veteran did not raise a claim for a psychiatric disorder. Therefore, the Board finds any statements or medical diagnoses made after adjudication of the Veteran's February 1992 and October 1998 claims (such as the statements made at the June 2012 VA examination and any resulting diagnoses) do not support a finding that the Veteran intended to or reasonably raised the issue of service connection for psychiatric disorder at the time those claims were adjudicated. In a March 1999 notification letter, the RO informed the Veteran that his claim for nonservice-connection pension was denied because his income exceeded the limit for those benefits. Attached to this letter was a rating decision, which addressed the Veteran's claim for service connection for a right knee disability only, and this issue was addressed in the notification letter as well. A January 2000 letter to the Veteran is of record, which indicates that the RO received his Veterans Assistance Inquiry concerning his Notice of Disagreement and that as of the date of that letter, they had not received one. The letter also informed the Veteran that he had until March 30, 2000, to submit a Notice of Disagreement. The Veteran did not respond to that letter and it was not returned as undeliverable. Because the Veteran did not timely appeal the March 1999 decision, and because no new and material evidence was received within one year of that decision, it became final. Based on the foregoing, contrary to the Veteran's assertions, all his disabilities listed on the October 1998 application form were adjudicated as a claim for nonservice-connected pension, aside from his knee injury, for which he specifically indicated he was seeking service-connected compensation. The Board further finds that the October 1998 claim for benefits did not reasonably raise a request to reopen a claim for service connection for a personality disorder. In reaching this conclusion, the Board has noted that the RO referenced the personality disorder when it mailed the Veteran the January 14, 1999, letter. However, the Veteran had not referenced a personality disorder in his October 1998 claim, and he did not submit any evidence at that time that pertained in any wait to his personality disorder. It appears that the reference to a personality disorder in the January 1999 letter from the RO was simply an attempt to cover all possible aspects of the Veteran's extremely vague statements contained in the October 1998 claim. The Board bases its finding of fact that the Veteran was not attempting to reopen his claim for service connection for a personality disorder for the same reasons discussed above regarding why the 1998 claim did not raise a claim for service connection for a psychiatric disorder. Moreover, even if the claim for benefits in 1998 were to be interpreted as having included a request to reopen the claim for service connection for a personality disorder (an interpretation the Board does not share), with such a request remaining pending from that time until he later claimed PTSD in 2009, the Board finds that this would not provide a basis for assigning an earlier effective date for PTSD. Service connection for antisocial personality disorder was denied in the February 1992 rating decision, because the evidence indicated the condition existed prior to service and was not aggravated beyond normal progression during service. Other than the September 1998 VA Form 21-526EZ, the Veteran submitted no new and material evidence. The February 1999 VA examination diagnosed the Veteran's with several conditions to include antisocial personality disorder. However, the examiner did not opine that the Veteran's antisocial personality disorder was aggravated by service, and the examiner also did not opine that the Veteran had a psychiatric condition such as PTSD. More specifically, on the mental disorder examination, the examiner wrote "no significant psychiatric diagnoses was found". On the neurological disorder examination, he wrote "with regards to this mental status, there is no evidence for primary memory disturbance. There is evidence for mild decreases in attention/concentration and this of unknown etiology." Given that no psychiatric disorder for which compensation may be paid was present at that time, the Board finds no basis for assigning an earlier effective date. Likewise, the Veteran did not submit any statements or medical evidence after the February 1999 rating decision to raise a claim for a psychiatric condition. The Board also acknowledges the Veteran's argument that his condition was misdiagnosed during service as a personality disorder, when he actually had symptoms of PTSD. However, a misdiagnosis of a condition does not void the finality of a prior denial and cannot entitle the Veteran to an earlier effective date. In that regard, the Board notes that a reasonable VA adjudicator is not a medical professional and could not reasonably foresee the potential for any misdiagnosis, particularly at the time of the 1992 and 1998 filings. Like the previous argument, Board finds this argument is heavily clouded by hindsight bias. It was not until August 27, 2009 that the Veteran filed a claim for service connection for PTSD. Evidence developed at that time showed the presence of PTSD. In October 2009, the RO granted service connection for PTSD effective from the date of that claim. There is no indication that the Veteran submitted a claim, either formal or informal, for PTSD prior to the claim submitted on August 27, 2009. Moreover, the competent evidence demonstrates that PTSD was not present prior to the effective date of the grant of service connection. The contemporaneous examination in service and in 1999 showed that no psychiatric disorder for which compensation may be paid was present. Under the law, the effective date for the grant of service connection is the date of the claim or the date entitlement arose, whichever is later. As such, the RO assigned the earliest possible date for the grant of benefits, which was received on August 27, 2009. Accordingly, the appeal is denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harris 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.