Citation NR: 9636002 Decision Date: 12/18/96 Archive Date: 12/24/96 DOCKET NO. 90-52 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date prior to March 26, 1991, for an award of service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from June 1966 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) from a February 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for post-traumatic stress disorder, with an effective date of March 26, 1991, based upon a revised VA regulation. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, through his representative, that the effective date of his award of service connection for PTSD is incorrect, and that the appropriate effective date is the date of his reopened claim, which was on September 19, 1989. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for entitlement to an effective date prior to March 26, 1991, for service connection for PTSD. FINDINGS OF FACT 1. In August 1991, the RO granted the veteran service connection for PTSD based upon an amendment to VA Administrative Procedure Manual M21-1 (Interim Issue 21-91- 1), dated March 26, 1991. 2. The RO relied upon Interim Issue 21-91-1 as a “liberalizing VA issue” in its decision to grant service connection for PTSD. 3. In March 1992, the Office of the General Counsel of the Department of Veterans Affairs determined that Interim Issue 21-91-1 was invalid because it had not been promulgated in accordance with VA rulemaking procedures or by the Secretary of Veterans Affairs. 4. Since the amendment was invalid, it was not binding on the VA. 5. The amendment was rescinded in its entirety in May 1992, and new regulations as to this issue were not promulgated until December 21, 1992. 6. The assignment of an effective date of March 26, 1991, was to the veteran’s benefit, as he had, in effect, been granted benefits well in advance of the lawfully revised regulations. CONCLUSIONS OF LAW 1. The effective date for the award of service connection for PTSD was based upon Interim Issue 21-91-1, considered to be a liberalizing issue, which was later determined to be invalid. VAOPGCPREC 07-92 2. The appropriate effective date for the award of service connection for PTSD based upon a presumed liberalizing issue was March 26, 1991, and an earlier effective date is not warranted. 38 U.S.C.A. § 5110(g) (West 1991); 38 C.F.R. § 3.400 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran’s claim for a prior effective date for service connection for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107. That is, the Board finds that he has presented a claim which is plausible. The Board is also satisfied that all relevant and available facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. The veteran filed an informal claim for service connection for PTSD in November 1986. The claim was denied in March 1987. Although he filed a notice of disagreement in July 1987, he failed to complete his appeal. In August 1988, he attempted to reopen the claim, but a rating action in September 1988 continued the denial. The veteran filed a notice of disagreement in October 1989 and a substantive appeal in December 1989. In view of contentions by the veteran that the decision was erroneous in light of his having received the Combat Infantryman’s Badge, the Board remanded the case for a review as to whether an August 1987 rating decision was clearly and unmistakably in error in denying service connection. In August 1991, the RO determined that no clear and unmistakable error had occurred in the rating decision of March 1987 because an identifiable stressor had not readily been identifiable or documented in the claims folder and that the rating decision of September 1988 was also not erroneous as no new and material evidence has been submitted sufficient to reopen the claim. In the August 1991 decision, the RO noted that VA Administrative Procedure Manual M21-1, Part 1, Paragraph 50.45e, had been amended by Interim Issue 21-91-1, which stated that if the evidence showed the veteran had been engaged in combat and the claimed stressor was related to combat, no further development for evidence of a stressor was necessary. Based on this premise, the rating agency conducted a review of the entire evidence of record and determined that the veteran was entitled to service connection for PTSD, based upon the aforementioned change in regulations. The effective date of entitlement was determined as March 26, 1991, the date of the regulation. The veteran, through his representative, The American Legion, contends that the effective date of March 26, 1991, corresponds with an amendment to the agency of original jurisdiction’s local manual M21-1, referred to as “liberalizing legislation.” It is asserted, however, that this amendment was not the product of liberalizing legislation effected by Congress, but rather “a simple administrative correction,” and that the appropriate effective date is the date of the reopened claim, September 19, 1989. The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation. . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a) (West 1991). Additionally, where compensation is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the Act or administrative issue. 38 U.S.C.A. § 5110(g) (West 1991). Pursuant to VA regulation 38 C.F.R. § 38 C.F.R. § 3.114 (1995), where compensation is awarded or increased pursuant to a liberalizing law or a liberalizing VA issue approved by the Secretary or by the Secretary’s direction, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. In this respect, the Board points out that the Office of General Counsel in O.G.C. Precedent 07-92, March 17, 1992, determined that the provisions of Adjudication Procedure Manual M21-1, Part I, paragraph 50.45 did not constitute “instructions of the Secretary” within the meaning of 38 U.S.C.A. § 7104(c). Changes to Paragraphs 50.45d and 50.45e made by Veterans Benefits Administration Interim Issue 21-91-1 regarding the development of evidence in cases involving post-traumatic stress disorder, constituted substantive rules which were invalid because they were not promulgated in accordance with the correct rulemaking procedures. Additionally, because these substantive rules were issued by the Chief Benefits Director in violation of the delegation of rulemaking power to the Secretary of Veterans Affairs, they were considered to be not binding on the Board of Veterans’ Appeals or the Veterans Benefits Administration. The Office of General Counsel, stated in dicta, however, that, if they had been promulgated by the Secretary, these substantive rules would have been issued pursuant to statutory direction. The Board points out that prior to the issuance of VBA Interim Issue 21-91-1, paragraph 50.45e provided, in part, that in developing a claim for PTSD, a history of a stressor as related by the veteran was, in itself, insufficient, but that the existence of a recognizable stressor or accumulation of stressors must be supported. It was important that the stressor be described as to its nature, severity, and date of occurrence. VBA Interim Issue 21-91-1, paragraph 50.45e, provided that if the evidence showed that the veteran had engaged in combat with the enemy and the claimed stressor was related to combat, no further development for evidence of a stressor was necessary. Administrative “interim issue” 21-91-1, dated March 26, 1991 and appearing in M21-1, Part I, Paragraph 50.45(e), was rescinded in its entirety in May 1992. In view of the above legal development, the Board finds that had VBA Interim Issue 21-91-1 been valid, it would have constituted a liberalizing VA issue. Since the VA had based its decision on what it believed was a liberalizing issue, the veteran has not been prejudiced by the outcome. If the VA decision had been predicated upon a subsequent and lawful revision of the regulations, the effective date would have been December 21, 1992, the date of the new Administrative Manual M21-1 provisions. Administrative Manual M21-1, Part VI, para. 7.46(e) (Dec. 21, 1992); See Zarycki v. Brown, 6 Vet.App. 91, 97 (1993). In OGC Precedent 11-94, the General Counsel held, in part, that, if an award has been predicated upon an administrative issue, such as the amendment to a regulation, prompted by a judicial precedent, 38 U.S.C.A. § 5110(g) should be applied in assigning the effective date if to do so would be to the claimant’s benefit. VAOPGCPREC 11-94. Having reviewed the peculiar facts of the instant case, the Board concludes that, even though the RO had relied on what subsequently had been determined to be an invalid regulation, the veteran had actually benefited from the error, as he had been granted service connection prior to the lawfully enacted change in regulations. Accordingly, the Board finds that an effective date prior to March 26, 1991, for the award of service connection for post-traumatic stress disorder is not warranted. ORDER An effective date for service connection for PTSD prior to March 26, 1991, is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). 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