ptsd New And Material Evidence, Service Department Records

[Josephine]

Citation Nr: 0514903

Decision Date: 06/02/05 Archive Date: 06/15/05

DOCKET NO. 03-32 077A ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Roanoke,

Virginia

THE ISSUE

Entitlement to an effective date prior to April 11, 1995, for

the grant of service connection for post-traumatic stress

disorder (PTSD).

REPRESENTATION

Appellant represented by: Julie M. Clifford, Attorney

ATTORNEY FOR THE BOARD

D. L. Wight, Counsel

INTRODUCTION

The veteran served on active duty from October 1943 to

January 1946.

This case comes before the Board of Veterans' Appeals (Board)

on appeal of a November 2001 rating decision rendered by the

Roanoke, Virginia, Regional Office (RO) of the Department of

Veterans Affairs (VA).

FINDINGS OF FACT

1. The RO received the veteran's original claim for service

connection for PTSD on April 1, 1986.

2. The Board issued a decision denying service connection

for PTSD in February 1990 and a decision in November 1994

holding that new and material evidence had not been submitted

to reopen his claim for service connection.

3. Thereafter, new and material evidence, including service

department records, was received and the reopened claim was

granted.

4. The veteran had PTSD due to service stressors when his

original claim for service connection for this disability was

received.

CONCLUSION OF LAW

The criteria for an effective date of April 1, 1986, for the

award of service connection for PTSD have been met. 38

U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156©, 3.400

(q)(2) (2004); Spencer v. Brown, 4 Vet. App. 283, 293 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Board notes that VA's General Counsel has held that the

notification requirements of the Veterans Claims Assistance

Act of 2000 (VCAA) are not applicable to appeals such as the

current one involving a notice of disagreement with the

effective date of an award of service connection. See

VAOPGCPREC 8-2003 (Dec. 22, 2003). This precedent opinion by

the VA General Counsel is legally binding upon the Board.

See 38 U.S.C.A. § 7104© (West 2002).

In any event, the Board notes that the veteran was provided

with VCAA notice in a letter mailed in January 2004. It is

apparent from the argument submitted by the veteran's

attorney that she is well aware of what is required to

substantiate the claim and that there is no outstanding

evidence to substantiate the claim. She essentially argues

that the grant of service connection should be effective from

the date of receipt of the veteran's original claim. As

explained below, the Board agrees. Although the attorney

identifies the date of receipt of the original claim as March

28, 1986, the statement of the veteran's then representative,

which the attorney identifies as the original claim, is dated

March 28, 1986, but was not received by VA until April 1,

1986. Thus, although it can not be said that the pertinent

facts are not in dispute, it is clear that no further

development of the record is required to determine when the

original claim was received.

Analysis

Unless specifically provided otherwise, the effective date of

an award of compensation based on an original claim, a claim

reopened after a final adjudication, or a claim for increase,

shall be fixed in accordance with the facts found, but shall

not be earlier than the date of receipt of application

therefore. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. §

3.400 (2004).

When there is a final denial of a claim, and new and material

evidence consisting of service department records is

subsequently received, the effective date of the award of

compensation is to agree with the evaluation (since it is

considered these records were lost or mislaid) or the date or

receipt of the claim on which the prior evaluation was made,

whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (2004).

The U. S. Court of Appeals for Veterans Claims has noted that

VA has consistently treated the reopening of a claim on the

basis of service department records as a reopening of the

original claim warranting a review of the former disposition

in light of the service department records which were

considered to have been lost or mislaid. Spencer v. Brown, 4

Vet. App. 283, 293 (1993).

In a statement dated March 28, 1986, the veteran's then

representative informed the RO that the veteran was claiming

entitlement to service connection for PTSD. The date stamp

on this statement indicates that it was received by the RO on

April 1, 1986. This claim was denied by the RO and the

veteran's appeal of the RO's decision was denied in an

unappealed decision of the Board in February 1990. In an

unappealed decision of November 1994, the Board determined

that new and material evidence had not been presented to

reopen the claim. In a July 2001 decision, the Board granted

reopening of the claim based on the receipt of new and

material evidence, including service department records. The

Board remanded the reopened claim for further action by the

RO. In the rating decision currently on appeal, the RO

granted service connection for PTSD, effective April 11,

1995.

Since the new and material evidence warranting reopening of

the claim included service department records, the proper

effective date of the award of service connection is the date

of receipt of the veteran's original claim, April 1, 1986, if

the veteran's PTSD existed at that time.

There is conflicting evidence concerning whether the veteran

had PTSD due to service when his original claim was received.

For instance, an October 1986 statement from a VA outreach

therapist indicates that the veteran had been attending

Readjustment Counseling Groups for seven months. During that

time, he demonstrated symptoms of PTSD in accordance with

DSM-III (Diagnostic and Statistical Manual of Mental

Disorders). The veteran reported service stressors beginning

at Normandy and continuing through Germany. These traumatic

events led up to his gunshot wounds and being pinned down for

days under fire with no medical help and no food or water.

During that time, he thought of killing himself to stop the

pain. The issue of suicide was continued to the present. It

was noted that the veteran self medicated with alcohol and

his wife accepted the veteran's emotional numbing.

In June and July 1987, the veteran underwent VA psychological

evaluation. He reported that he was involved with the

landing at Normandy on D-Day plus 10. According to the

veteran, he was assigned to the 335th Engineer Regiment,

Seventh Armored Division as a tank driver. He related that

he drove supply trucks, assisted with laying fuel pipes, and

performed guard duty. Following service, he worked at the

Hercules Arsenal in Radford, Virginia, and as a tractor-

trailer driver. He retired from the Arsenal in 1986 due to a

series of angina attacks necessitating heart surgery in 1985.

He reported that he used alcohol excessively on weekends to

reduce his anxiety and to improve his sleep while he was

working. He had had continuous problems with sleep

disturbance since his military service. He also had

disruptive combat-related dreams, frequent intrusive thoughts

of combat, and an exaggerated startle response. Based on the

veteran's reported history, the examining psychologist

diagnosed PTSD.

However, other medical evidence, including the report of a

November 1998 VA examination, indicates that the veteran did

not meet the criteria for a diagnosis of PTSD. Because of

the conflict in the medical evidence, the veteran was

afforded a VA examination by a board of two VA psychiatrists

in November 2001. The veteran's claims folders were examined

prior to a 45 to 60 minute interview of the veteran. The

examiners concluded that the veteran met the criteria for a

diagnosis of PTSD and that the disorder was due to a

combination of combat and non-combat stressors. In addition,

they noted that the disorder had been well documented by

various providers, to include the outreach therapist who saw

the veteran in 1986. In the Board's opinion, the report of

this examination is highly probative because it is based upon

a longitudinal review of the veteran's pertinent medical

history and a thorough examination of the veteran, and the

two psychiatrists are both of the opinion that the veteran

has PTSD due to service and that the disorder was present

when he was seen by the outreach therapist in 1986, prior to

the filing of his claim for service connection. Therefore,

the Board concludes that the preponderance of the evidence

establishes that the veteran had PTSD when his original claim

was received by VA. Accordingly, the proper effective date

for the grant of service connection is April 1, 1986.

ORDER

An effective date of April 1, 1986, for the award of service

connection for PTSD is granted, subject to the criteria

governing the payment of monetary benefits.

____________________________________________

Shane A. Durkin

Veterans Law Judge

Board of Veterans' Appeals

Department of Veterans Affairs

[Berta]

This is a GREAT FIND Josephine-

I commend you- this is the type of claim we often dont discuss much-

I posted this one too some time ago:

Decision dated 2000, retro back to 1945

http://www.va.gov/vetapp00/files3/0029491.txt

In the claim you found (A BEAUTY!)

BVA said:

"In the Board's opinion, the report of

this examination is highly probative because it is based upon

a longitudinal review of the veteran's pertinent medical

history and a thorough examination of the veteran, and the

two psychiatrists are both of the opinion that the veteran

has PTSD due to service and that the disorder was present

when he was seen by the outreach therapist in 1986, prior to

the filing of his claim for service connection. Therefore,

the Board concludes that the preponderance of the evidence

establishes that the veteran had PTSD when his original claim

was received by VA."

They consider the issue of CUE to be moot-but in essense this vet won due to CUE as I understand CUE regs-

and Bell V Principi-

"In a July 2001 decision, the Board granted

reopening of the claim based on the receipt of new and

material evidence, including service department records. The

Board remanded the reopened claim for further action by the

RO. In the rating decision currently on appeal, the RO

granted service connection for PTSD, effective April 11,

1995.

Since the new and material evidence warranting reopening of

the claim included service department records, the proper

effective date of the award of service connection is the date

of receipt of the veteran's original claim, April 1, 1986, if

the veteran's PTSD existed at that time."

Edited September 29, 2007 by Berta

[Josephine]

Berta,

If one goes to the BVA site and types in the words - Service Department Records, cases after cases come up.

I just couldn't figure out why the BVA was calling my " Psychiatric Records" never acquired by the R. O as " Service Department Records.

With all the help that I have received from Hadit the pieces of the puzzle are going together.

Thanks for posting "Mariano"

Always and Thanks,

Josephine

[Pete53]

This is big cause it appears that a reopened claim also opens the doors to an earlier effective date.

[Josephine]

Pete,

I think this is correct. I believe that this may help Macool. Sure hope that he is reading this.

Josephine

[john999]

Reopened claims and CUE's have potential for much earlier effective dates and this is why the VA fights like hell to deny them. Josephine, part of your problem is just the fact the VA does not want to pay large retro. This is why they made CUE so hard. Many of us were low balled or denied SC. I think this is why the shrinks in your case got together and said PD instead of service connected anxiety.

[Josephine]

John999,

I am quite sure that is where the personality thing came from.

I did note that they used the terms Personality disorder not otherwise specified with bordeline and dependent traits.

I have checked the DSM IV book and this is not a personality disorder.

I am going to post this under a separate post.

Thanks,

Josephine