Citation Nr: A25035183 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 200814-103256 DATE: April 16, 2025 ORDER Entitlement to an effective date prior to March 13, 2015, for the grant of service connection for posttraumatic stress disorder due to military sexual trauma (MST) with bipolar disorder (PTSD) is denied. FINDINGS OF FACT 1. Service connection was previously denied for a nervous breakdown and panic disorder, later claimed as PTSD, in the June 2003, February 2006, September 2008, and October 2012 final rating decisions that were not appealed, nor was a motion for reconsideration requested. 2. Service treatment records (STRs) and military personnel records (MPRs) associated with the file since the June 2003, February 2006, September 2008, and October 2012 final rating decisions did not constitute "relevant" records under 38?C.F.R. § 3.156(c). 3. Prior to March 13, 2015, there was no pending, unadjudicated claim or unadjudicated petition to reopen the claim for service connection for a psychiatric disorder of any sort; the March 13, 2015, effective date is the earliest possible effective date assignable for service connection for PTSD. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to March 13, 2015, for the grant of service connection for PTSD have not been met. 38?U.S.C. §§ 5101, 5110; 38?C.F.R. §§?3.102, 3.151(a), 3.156, 3.160, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1995 to June 1999. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a July 2020 higher-level review rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2022, the Board denied entitlement to an earlier effective date prior to March 13, 2015, for the grant of service connection for PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In September 2023, the Court granted a Joint Motion for Remand (JMR), vacating and remanding the matter to the Board. Then, in February 2024, the Board denied entitlement to an earlier effective date once more. The Veteran again appealed the decision to the Court. In September 2024, the Court granted another JMR, vacating and remanding the matter to the Board. The parties to the JMR agreed that the Board did not adequately discuss reconsideration pursuant to 38 C.F.R. § 3.156(c)(1). Specifically, the Board did not discuss whether the later received service treatment records (STRs) and military personnel records (MPRs) were associated with the Veteran's file after each of the final rating decisions, namely the February 2006, September 2008, or October 2012 rating decisions. Additionally, the parties to the JMR agreed that the Board did not provide adequate reasons and bases to address the Veteran's argument that the "grant for PTSD was based, in part, on the later-obtained service records because those records triggered VA examination entitlement that supported the grant of service connection." See September 2024 JMR. Next, the parties to the JMR found that the Board did not provide adequate reasons and bases to address the Veteran's argument that the June 2008 letter was a valid notice of disagreement (NOD) to the October 2007 rating decision, and not a new claim. Id. Finally, the JMR outlined that the Board should provide notice to the Veteran permitting no fewer than 90 days for the submission of additional argument to the Board, which has been satisfied since that time. The Board notes that it is still constrained by the relevant evidentiary window despite the Court's remand. Specifically, in the August 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the June 2019 agency of original jurisdiction (AOJ) RAMP decision, which was subsequently subject to higher-level review in July 2020. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to an effective date prior to March 13, 2015, for the grant of service connection for PTSD due to MST with bipolar disorder The Veteran contends that an effective date earlier than March 13, 2015, is warranted for the grant of service connection for PTSD, arguing that the award should go back to her original August 27, 2002, claim for a psychiatric disability. See, e.g., January 2024 Appellant's brief. Generally, the effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a claim is received within one year after separation from service. 38?U.S.C. §?5110; 38?C.F.R. §?3.400. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38?C.F.R. §?3.400. After a final disallowance of a claim, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38?U.S.C. §?5110(a); 38?C.F.R. §?3.400(q)(2). In other words, as dictated by the above provisions, once a previous decision has become final, the earliest effective date of service connection for the disability addressed in that decision is the date of the petition to reopen rather than the date of the initial claim. Id. The only exceptions to this rule are when a later grant of service connection is based in whole or in part on newly obtained service department records under certain circumstances, as provided in 38?C.F.R. §?3.156(c), and when the decision is revised or reversed on the basis of clear and unmistakable error (CUE), as provided in 38?U.S.C. §?5109A(a) and 38?C.F.R. §?3.105(a). The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38?U.S.C. §?5101 (a); 38?C.F.R. §?3.151(a). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38?C.F.R. §?3.400(o)(2). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015. Id. at 57,686. Under the former regulations, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38?C.F.R. §?3.155(a) (2014). Procedurally, the Veteran's original August 2002 claim for service connection for nervous breakdown and/or and panic attacks was denied in a June 2003 rating decision, which found that there was no evidence of treatment for a nervous breakdown or panic disorder in the Veteran's STRs and concluded that it did not occur in, nor was caused by, service. See June 2003 Rating Decision. The Veteran was notified of that decision and her appellate rights in a letter dated later that month. See June 2003 VA Notification Letter. Under VA's legacy appeal system, she had a year from the date of mailing of that decision to initiate the appeal process by filing a Notice of Disagreement (NOD), which she did not do. See 38?C.F.R. §§?20.200, 20.202, 20.302. As the Veteran did not file an NOD within the appeal period or submit new and material evidence during that period, the June 2003 decision is final. See 38?U.S.C. §?7105; 38?C.F.R. §?20.1103; see also 38?C.F.R. §§?3.156(b), 3.156(c), 3.400(q); Young v. Shinseki, 22?Vet. App.?461, 466 (2009) (holding that new and material evidence received within one year of an RO decision prevents that decision from becoming final). In July 2005, the Veteran then filed a petition to reopen the claim for service connection for nervous breakdown and/or panic disorder, which was denied in February 2006 because the evidence submitted was not new and material. Again, as she did not file an NOD within the appeal period, or submit new and material evidence during that period, the February 2006 decision is final. See February 2006 rating decision. See 38?U.S.C. §?7105; 38?C.F.R. §?20.1103. The Veteran then submitted claims for service connection for depression and PTSD in April 2007 along with newly submitted evidence. The claims were denied in October 2007 because the RO found that there was no diagnosis of PTSD or depression. See October 2007 rating decision. Although the Veteran initially filed a claim of entitlement to service connection for nervous breakdown and/or panic attacks, then later for depression, PTSD, and PTSD due to MST with bipolar disorder, they are all claims for a psychiatric condition that the Board will consider altogether. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The October 2007 rating decision did not become final because the Veteran submitted a new claim for reconsideration of her claims for service connection for PTSD and depression in June 2008 along with additional new and material evidence. Because this new and material evidence was submitted within one-year of the October 2007 RO decision, it tolled the decision from becoming final. See 38 C.F.R. § 3.156(b); Young, 22?Vet. App. at 466. However, in September 2008, the RO denied these claims once more, finding that there was no evidence of a diagnosis of PTSD, or evidence that the Veteran's depression was related to military service. See September 2008 rating decision. As she did not file an NOD within the appeal period, or submit new and material evidence during that period, the September 2008 decision also became final. See 38?U.S.C. §?7105; 38?C.F.R. §?20.1103. The Veteran once again filed a claim for service connection for PTSD in February 2012, which was reopened and denied by the RO in October 2012 because the RO found that the evidence failed to show that the Veteran had a diagnosis of PTSD that was incurred in or related to military service. As she did not file an NOD within the appeal period, or submit new and material evidence during that period, the October 2012 decision became final. See 38?U.S.C. §?7105; 38?C.F.R. §?20.1103. Finally, on March 13, 2015, the Veteran petitioned to reopen the claim for service connection for major depressive disorder/affective disorder/bipolar disorder/panic disorder. See March 2015 Veteran's Application for Disability Compensation. Although the RO declined to reopen the Veteran's claim in September 2015, the decision did not become final because the Veteran submitted a new claim to reopen service connection for an acquired psychiatric disorder in October 2015 along with new and material evidence. See 38 C.F.R. § 3.156(b); Young, 22?Vet. App. at 466. However, in the March 2016 rating decision, the AOJ found that new and material evidence had been presented, but found that there was no evidence to support that the Veteran's condition was caused by military service. See March 2016 rating decision. Thereafter, in June 2016, the Veteran submitted an NOD appealing the denial. See June 2016 NOD. After a Decision Review Officer hearing, the Veteran was granted service connection for PTSD due to military sexual trauma (MST) with bipolar disorder with an effective date of March 13, 2015. See June 2019 Rating Decision. The Veteran contends that the STRs and MPRs associated with the file in April 2015 did not render the June 2003 rating decision final, and that an earlier effective date is warranted back to the initial August 2002 claim. She also contends that the later associated files also prevented the February 2006, September 2008, and October 2012 rating decisions from becoming final. However, the applicable regulations are clear; once a previous decision has become final, the earliest effective date of service connection for the disability addressed in that decision is the date of the petition to reopen rather than the date of the initial claim. See 38?C.F.R. §?3.400(q)(2). The only exceptions to this rule are when a later grant of service connection is based in whole or in part on newly obtained service department records under certain circumstances, as provided in 38?C.F.R. §?3.156(c), and when the decision is revised or reversed on the basis of clear and unmistakable error (CUE), as provided in 38?U.S.C. §?5109A(a) and 38?C.F.R. §?3.105(a). As no CUE has been claimed by the Veteran, that question is not before the Board. The Board additionally notes that the exception to the general effective date rules afforded by newly associated service department records under 38?C.F.R. §?3.156(c) does not apply in this case. Under 38?C.F.R. §?3.156(c), 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. An award based all or in part on such records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38?C.F.R. §?3.156(c)(3). Here, additional STRs and MPRs were associated with the claims file in April 2015 after the June 2003, February 2006, September 2008, and October 2012 final rating decisions denying the Veteran's claim for service connection for a psychiatric condition. Notably, however, the RO indicated that service medical records from September 30, 1994, to February 2, 1999, were reviewed before the June 2003 rating decision. See June 2003 rating decision. Therefore, it follows that these same service medical records were also available and reviewed by the RO in the February 2006, September 2008, and October 2012 final rating decisions. It is clear that the RO reviewed STRs dated at least until February 2, 1999. The Board notes that there were also MPRs dated April and May 1999 and STRs beginning September 30, 1994, associated with the claims file at that time, but those records did not contain evidence that was relevant to the Veteran's claim. The STRs and MPRs associated with the file in April 2015 include entries dated after February 2, 1999. However, the Veteran contended throughout the record that her main claimed in-service stressors were incidents she experienced during basic training. See, e.g., January 2003 and September 2007 statements in support of claim, April 2016 lay statement, and October 2017 DRO hearing testimony. The dates of these incidents at the beginning of her service were certainly reviewed in the June 2003, February 2006, September 2008, and October 2012 final rating decisions because the Veteran began active-duty service and basic training in January 1995, and the RO considered her records beginning September 1994 to February 1999. Moreover, the Veteran also contended that the incidents of MST occurred around October 1998, during her tour in Germany, which was also certainly reflected in the September 1994 to February 1999 STRs that were reviewed prior to the issuance of the June 2003, February 2006, September 2008, and October 2012 final rating decisions. See October 2017 DRO hearing testimony; see also, June 2003, February 2006, September 2008, and October 2012 rating decisions. The Board notes the Veteran's assertion that while in the military, she had signed a form reflecting that no record of counseling for her psychiatric condition would be reflected in her STRs. See April 2007 statement in support of claim. On the other hand, the Veteran's representative also indicated that the STRs and SMRs contained evidence of a psychiatric condition during service. See October 2023 Appellant's Brief. However, in either case, the later-added STRs were not relevant to the Veteran's claim of service connection for PTSD because the relevant time periods were already included in the September 1994 to February 1999 STRs reviewed prior to the June 2003, February 2006, September 2008, and October 2012 rating decisions. The Board also notes that the STRs were not specifically listed as evidence in the February 2006 and September 2008 rating decisions. It is clear from the record that in those instances, the RO did not list all the evidence in the record, but listed additional evidence that had been received since the prior rating decision. The fact still remains that the STRs were received and considered prior to the issuance of the June 2003, February 2006, September 2008, and October 2012 rating decisions. In the June 2019 rating decision, the RO indicated that the grant of service connection for PTSD was at least partly due to the Veteran's personnel and medical treatment records during and after service. However, the RO also specified that "[t]he previous denials of this condition was based on a lack [of] credible supporting evidence, specifically, evidence that the claimed in service stressor actually occurred." See June 2019 rating decision. The RO found that the post-service records helped corroborate the claimed in-service stressor, including VA examinations, private treatment records beginning May 2010, and the Veteran's spouse's May 2012 lay statement. Id. The RO did not indicate that any of the Veteran's STRs or MPRs received in April 2015 corroborated either the Veteran's diagnosis or her in-service stressor. Therefore, to the extent that any additional STRs or MPRs were received for the period of time between February 2, 1999, and June 17, 1999, they were not relevant to the Veteran's claim being granted, and so did not prevent the June 2003, February 2006, September 2008, and October 2012 rating decisions from becoming final. Additionally, the Board acknowledges the Veteran's contention, and the parties to the JMR agreed, that the Board did not provide adequate reasons and bases to address the Veteran's argument that the "grant for PTSD was based, in part, on the later-obtained service records because those records triggered VA examination entitlement that supported the grant of service connection." See September 2024 JMR. In order to trigger the duty to obtain a VA examination for the Veteran, there must exist competent evidence of: (1) a diagnosed disability or symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board finds that the Veteran's later-obtained records did not trigger the VA examination that later led to the grant of service connection. As previously discussed, the aforementioned later-obtained records were not relevant to the Veteran's claim, and so did not include competent evidence of a diagnosed disability or symptoms, an in-service event or stressor, or any evidence that the Veteran's disability was associated with the in-service event or stressor. Therefore, these records did not, and could not, trigger the VA's duty to assist the Veteran in providing a medical examination because they were not relevant to the Veteran's claim. Moreover, in the June 2019 rating decision granting service connection, the RO specifically described the evidence in which it based the grant of service connection for PTSD: "On the exam conducted on April 24, 2019, your current symptoms were observed and were shown to be at a level warranting a diagnosis of PTSD due to MST and bipolar disorder. In conjunction with your examinations, evidence from your private medical records, spanning from May 2010 to present, corroborates these diagnoses. Additionally, they support the MST in-service events claimed, which was further supported by your husband lay statement in May 2012, and therefore conceded. The examiner thus opined both diagnoses are directly related to the MST/harassment stressors, and as such warrant service connection." See June 2019 rating decision. In other words, the Veteran's medical records and husband's lay statement corroborated the claimed in-service stressor which triggered the VA's duty to assist in obtaining a medical examination, and consequently granting her claim for service connection. Finally, the parties to the JMR found that the Board did not provide adequate reasons and bases to address the Veteran's argument that the June 2008 letter was a valid notice of disagreement (NOD) to the October 2007 rating decision, and not a new claim. Id. Under 38 C.F.R. § 20.201, "a valid NOD must contain 'terms that can reasonably be construed as disagreement with that determination and a desire for appellate review.'" (emphasis added). Gallegos v. Principi, 283 F.3d 1309, 1314 (Fed. Cir. 2002). In the June 2008 statement in support of claim, the Veteran stated, "request for the VARO to obtain my medical records from the Baton Rouge VA OPC to substantiate my claim for service connection for PTSD and depression." See June 2008 statement in support of claim. Here, the Veteran made no indication whatsoever that her statement was in disagreement with the October 2007 rating decision. Moreover, in the concurrently received cover letter, the Veteran's own representative stated "Transmitted herewith are certain documents relative to a claim..." See June 2008 correspondence. Again, the representative made no contention that the documents were in disagreement with the October 2007 rating decision. Therefore, the Board finds that it cannot be reasonably construed that the June 2008 claim is an NOD to the October 2007 rating decision, which therefore became final. In summation, as the Veteran did not file an NOD for the June 2003, February 2006, September 2008, and October 2012 rating decisions, the decisions became final. Further, the later-attached STRs and MPRs were not relevant to the Veteran's claim, and were not a basis for which a VA examination was offered to the Veteran which led to the grant of service connection. Therefore, the Board finds that reconsideration of the claims is not proper under 38?C.F.R. §?3.156(c). Because a claim to reopen was not filed until March 13, 2015, following all prior final decisions, i.e., the June 2003, February 2006, September 2008, and October 2012 rating decisions, the effective date for the Veteran's grant of PTSD cannot be before receipt of that application. The Board concludes that, as the evidence persuasively favors against an earlier effective date, it is not in approximate balance, and the benefit-of-the-doubt doctrine does not apply. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Accordingly, an earlier effective date is not warranted, and the claim is denied. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Matta, Martina Y. 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.