Citation Nr: A25035359 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 210428-503825 DATE: April 16, 2025 ORDER Entitlement to an effective date of May 22, 2015, for the award of service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an effective date prior to October 28, 2016, for the award of a total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran submitted a VA Form 21-0996, Intent to File a Claim for Compensation, on May 22, 2015. 2. In June 2015, the Veteran submitted a claim seeking service connection for PTSD. 3. In a November 2015 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for PTSD, finding that the Veteran did not have a current diagnosis of PTSD. As the Veteran did not appeal or submit new and material evidence within the applicable appellate period, the decision became final. 4. In October 2016, the AOJ received a VA Form 21-0996, Intent to File a Claim for Compensation. 5. In October 2017, the AOJ received a VA Form 21-526EZ, seeking, inter alia, readjudication of the Veteran's claim of entitlement to service connection for PTSD. 6. In a December 2017 rating decision, the denial of service connection for PTSD was continued. 7. In March 2018, the Veteran submitted a Notice of Disagreement as to, inter alia, the December 2017 rating decision's denial of service connection for PTSD. 8. In May 2019, deck logs for the USS Pyro (AE-24), which constitutes relevant official service department records, were submitted. 9. In a June 2019 Decision Review Officer (DRO) decision, the AOJ awarded service connection for PTSD, effective October 28, 2016. The decision was based, in part, on the official service department records associated with the file in May 2019. CONCLUSION OF LAW The criteria for an effective date of May 22, 2015, for the grant of service connection for the Veteran's PTSD, 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 FINDING AND CONCLUSION Prior to discussing the appeal at hand, the Board of Veterans' Appeals (Board) would be remiss if it did not recognize the Veteran's honorable service. The Veteran, who served on active duty in the United States Navy from July 1971 to July 1975, was a recipient of, inter alia, the National Defense Service Medal, Navy Unit Commendation Ribbon, Vietnam Service Medal with One Bronze Star, and Vietnam Campaign Medal with Device. Clearly, the Veteran was a credit to the Navy and his family, and his service to our country is greatly appreciated. Unfortunately, the Veteran died in April 2023. See Death Certificate. The Board sincerely sympathizes for his family's loss. Appellant, his surviving spouse, was substituted on behalf of the Veteran in November 2023. This matter comes before the Board on appeal from an August 2020 Higher-Level Review (HLR) decision issued by a Department of Veterans Affairs (VA) regional office (RO), which in turn arose from rating decisions dated June 2019 and July 2019. In an April 2021 VA Form 10182, the Veteran requested review of these matters, and thereby the June 2019 and July 2019 rating decisions, under the Board's direct review docket. The Board cannot hold a hearing or accept additional evidence into the record in its direct review. 38 C.F.R. § 20.301. Accordingly, with respect to the issue of entitlement to an earlier effective date for the award of service connection for PTSD, the Board may only consider the evidence of record as of July 1, 2019, the date of notification of the June 2019 rating decision. See July 2019 VA Correspondence. With respect to the issue of entitlement to an earlier effective date for the award of a TDIU, the Board may only consider the evidence of record as of July 25, 2019, the date of notification of the July 2019 rating decision. See July 25, 2019 VA Correspondence. As an initial matter, the Board notes that the August 2020 HLR decision also granted an earlier effective date for the assignment of a 70 percent rating for the Veteran's PTSD, as well as an earlier effective date for the award of basic eligibility to Dependents' Educational Assistance (DEA), and denied a compensable rating for the Veteran's bilateral hearing loss. However, in the April 2021 VA Form 10182, in identifying the specific issues the Veteran wished to appeal to the Board, the Veteran only identified earlier effective dates for the award of service connection for PTSD and the award of a TDIU. As such, the issues of entitlement to an earlier effective date for the assignment of a 70 percent rating for the Veteran's PTSD, an earlier effective date for the award of basic eligibility to DEA, and entitlement to a compensable rating for the Veteran's bilateral hearing loss are not before the Board on appeal. Entitlement to an effective date of May 22, 2015, for the award of service connection for PTSD is granted. Appellant contends that an earlier effective date is warranted for the grant of service connection for the Veteran's PTSD. Specifically, the appellant seeks an effective date of May 22, 2015, the date of the Veteran's original VA Form 21-0996, Intent to File a Claim for Compensation. 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 PTSD was initially denied in a November 2015 rating decision, with the AOJ finding that the Veteran did not have a diagnosis of PTSD. Thereafter, deck logs for the USS Pyro were associated with the claims file in May 2019. See Service Personnel Records, received May 2019. 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), the June 2019 rating decision that initially granted service connection for the Veteran's PTSD, and the August 2020 HLR decision from which this matter was appealed to the Board, identified the USS Pyro deck logs as having been considered in formulating the respective decisions. Therefore, 38 C.F.R. § 3.156(c)(3) applies. As such, the proper effective date for the award of service connection for the Veteran's PTSD is the later of (a) the date of receipt of the Veteran's previously denied claim or (b) the date entitlement arose. The Veteran's initial claim of entitlement to service connection for PTSD was received on June 24, 2015. See June 2015 VA Form 21-526EZ. However, when a complete claim is received within one year of receipt of an intent to file, an effective date may be assigned based on the date of receipt of such intent to file. 38 C.F.R. § 3.155. Here, the Veteran submitted an intent to file on May 22, 2015. See May 2015 VA Form 21-0996. In essence, for the purpose of assigning an effective date, the Veteran's initial claim is treated as having been received on May 22, 2015. With respect to the date entitlement arose, the Board acknowledges that the record does not reveal a confirmed diagnosis of PTSD until April 2019. See Des Moines VA Medical Center (VAMC) records, received May 2019 and August 2023 in CAPRI. However, the Veteran's medical records also reveal positive PTSD screenings as early as December 2010, as well as treatment for PTSD symptoms as early as December 2014. See id. In other words, the Veteran's medical records reveal an onset of symptomatology prior to receipt of the Veteran's initial claim seeking service connection for PTSD. Based on the above, the Board finds that an effective date of May 22, 2015, for the award of service connection for the Veteran's PTSD, which constitutes the later of the date of receipt of claim or the date entitlement arose, is warranted. As such, entitlement to an earlier effective date is granted. See 38 C.F.R. §§ 3.114(a), 3.156(c), 3.317, 3.400. The Board will allow the AOJ to assign an initial rating for the Veteran's PTSD in the first instance. REASONS FOR REMAND Entitlement to an effective date prior to October 28, 2016, for the award of a TDIU is remanded. The Board regrets the delay associated with this remand. However, the Board finds that this matter is inextricably intertwined with the AOJ's implementation of the Board's grant of an earlier effective date for the award of service connection for PTSD above. Therefore, a remand is required. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). (Continued on the next page) ? Accordingly, the matter is REMANDED for the following action: After implementing the award of earlier effective date for the award of service connection for PTSD, readjudicate the issue of entitlement to an earlier effective date for the award of a TDIU. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Martin III, 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.