Jump to content
Ads Keep HadIt.com Online. Consider Turning Off Ad Blockers to Keep HadIt.com Online! ×
  • 0

New And Material Evidence, Service Department Records


Josephine

Question

  • HadIt.com Elder

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

Link to comment
Share on other sites

  • Answers 24
  • Created
  • Last Reply

Top Posters For This Question

Recommended Posts

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 by Berta
Link to comment
Share on other sites

  • HadIt.com Elder

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

Link to comment
Share on other sites

  • HadIt.com Elder

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

Link to comment
Share on other sites

  • HadIt.com Elder

Pete,

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

Josephine

Link to comment
Share on other sites

  • HadIt.com Elder

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.

Link to comment
Share on other sites

  • HadIt.com Elder

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

Link to comment
Share on other sites

  • HadIt.com Elder

Josephine:

Personality DIsorder than is non specific used to be the way the Army would use as a temporay diagnosis and they were supposed to come back and flesh it out. The VA started using it on their own volition and also changing a diagnosis on their own.

Link to comment
Share on other sites

  • HadIt.com Elder

Pete,

I just sent an email to Dr. Gunderson, Personality Disorder Expert.

He is one of the Psychiarist, author of the DSM IV Book, for his expertise on this Personality Disorder not otherwise Specified.

To my knowledge it is not recognized by the DSM Psychiatric Book.

Always,

Josephine

Edited by Josephine
Link to comment
Share on other sites

  • HadIt.com Elder

This is the diagnosis the Army has been using to dump PTSD vets who come back from Iraq. I had a doctor examine me for 10 minutes and declare I had a personality disorder. No medical or social history just a snap diagnosis and this was when I was having severe panic disorder symptoms. This was in Vietnam and the deal was that if you started to have problems you were discharged as unfit. The only ones who were not were the complete zombie cases who broke down in combat and had to be shipped home in restraints.

What happened to you Josephine is so common it hurts me to remember it. It happened to many of us getting tagged with a PD disgnosis so the military can save money. They screw you for life to save a few bucks. These people don't deserve to command troops or be be dog catchers. I wonder how many vets with depression, panic or anxiety were discharged as medical as opposed to be unfit? Only the blatant psychotics got medical discharges and that was probably rare as well since the army would say it was pre-existing.

Link to comment
Share on other sites

Yes- I emailed Rick to read your post Josephine-

this could be his best approach.We live in same locale but I could not take the time to help him here one to one-

too much on my plate these days-----

and I think this a better than a CUE approach for him---

Berta

Link to comment
Share on other sites

Wow

This does look like it would help.

I have been M.I.A. really busy week. Thanks for bringing this to my attention. When I get some time in like two or three weeks I will really get into this further.

I am trying to work Again with a torn rotator on the left side. I beleave that started at my last C&P exam. Just My luck.

I would love to just get my service connection so I could have other Options. But I sit and wait on the VA to connect me - this post can be used in helping me get the retro, "I think". Thanks Josephine! And thanks Berta for bring this to my attention. And of course thanks Hadit for being here. This really gives me new hope.

Macool

Link to comment
Share on other sites

  • HadIt.com Elder

Berta,

Thanks so much for bringing this to Macool's attention. I believe when he feels better, he needs to go to the BVA site and type in Service Department Records and he will locate the clue that we have been needing to nail these old birds. Not under Cue.

I did write to Dr. Gunderson, to get the feedback on this Personality Disorder not Otherwise Specified.

Bio: Dr. John Gunderson is a Professor of Psychiatry at Harvard Medical School. At McLean Hospital he is Director of Psychotherapy and of the Psychosocial Research Program. His seminal studies on the diagnosis, families, psychodynamics, treatment and pathogenesis of borderline personality disorder helped transform the diagnosis from a psychoanalytic construct into an empirically validated and internationally recognized disorder.

He chaired the DSM IV work group on personality disorders, and currently chairs a major NIMH-funded collaborative study on the longitudinal stability of personality disorders. He is actively involved in treating borderline patients using all modalities and brings this experience to bear in his talks and writing.

If the DSM Books do not recognize this as being a Personality Disorder, why in the heck did those two quack psychiatrist brand me with it.

I do not have a P.D discharge anywhere. It has never been mentioned until those two quacks mentioned it.

Thanks,

Josephine

Link to comment
Share on other sites

  • HadIt.com Elder

Macool,

I hope that you are feeling better soon. Sure hopes this brings sunshine to your day.

Always,

Josephine

Link to comment
Share on other sites

  • HadIt.com Elder

McCool

I worked with bad shoulder problems. I took a lot of vicodin. Rotator cuff problems are a misery. I had surgery but it did not help that much. Have you had surgery on the shoulder to try and fix it? Sometimes PT can actually help but if it is really torn badly surgery is the only fix, and that not 100%. Usually, you just have to find a job that does not aggravate the shoulder. I never could find such a job. Even typing bothers me.

Link to comment
Share on other sites

Well I wish I could say i did not have surgery but I have had some a couple times on the right and one on the left.

You are right, you or I can not do anything that don't use your shoulders in some way. It's something you learn to live with. I do heavey construction and its a little more extreme for me. I need to get into something different.

My shoulders bad but I am not getting another surgery, got kids to take care of and no check would be really bad. not an option - unless it tears all the way. sure hope not.

I could think of a million things that would not be as bad as what I do.

Thanks guys -- Macool

Link to comment
Share on other sites

  • HadIt.com Elder

Hi all,

My answer about the definition of a "Personality Disorder not otherwise Specified"

Dear Betty

It is a personality disorder diagnosis; not a single personality disorder category.

John Gunderson, MD

Link to comment
Share on other sites

  • HadIt.com Elder

Paul,

For me my service department records, were psychiatric consultations in the military one by Dr. Jones, March 1964 and one by Dr. G McMahone, April 1964 and a letter by my Commanding Officer which lead to my early discharge and the reasons for the early discharge.

When I filed for benefits in 1978 and told the VA of these Competency Review Records, they were never acquired.

I re-filed again in 2001 and history repeated itself. They were not acquired.

In 2003, same thing happened again, but this time the VA did award me a pension of 100% for Anxiety with Depression and unemployable since 1983, but denied me due to my husbands income.

I refused to settle for this.

I sit down and hand wrote a letter to the St. Louis Archives and ask the technician to look for these important records.

Two weeks later, he mailed these records, where they lay silent for 40 years.

I turned in copies to the VA and all claims were re-opened as these were " New and Material " and never acquired by the Va.

Also in 2006, It became light that the VA, also never acquired my Personel Records, which also were silent in the archives for 40 years.

These records also became " New and Material". These records included my request for transfer.

If you go to the BVA site under decisions, type in Service department Records and you can read the different cases.

These will give you a complete detail of what is considered Service Department Records.

I am sure that there are others, but these pretain to my claim.

We are only fighting over 30 years of retro pay.

I too had that " Favorable" decision, but the VA got rid of that one fast in less than 5 months. This is where the Mariano v. Principi, 17 Vet. App. 305, 312 comes into play.

The VA has definitely made a decision on my claim, but the Rating Supervisor still has not signed off on it.

I am going to try tomorrow and see if I can't flirt or whatever it takes to get Lidel to tell me the decision.

I talked to him today, he has been promoted to Claims Adjustor.

Always,

Betty

Link to comment
Share on other sites

Paul,

For me my service department records, were psychiatric consultations in the military one by Dr. Jones, March 1964 and one by Dr. G McMahone, April 1964 and a letter by my Commanding Officer which lead to my early discharge and the reasons for the early discharge.

When I filed for benefits in 1978 and told the VA of these Competency Review Records, they were never acquired.

I re-filed again in 2001 and history repeated itself. They were not acquired.

In 2003, same thing happened again, but this time the VA did award me a pension of 100% for Anxiety with Depression and unemployable since 1983, but denied me due to my husbands income.

I refused to settle for this.

I sit down and hand wrote a letter to the St. Louis Archives and ask the technician to look for these important records.

Two weeks later, he mailed these records, where they lay silent for 40 years.

I turned in copies to the VA and all claims were re-opened as these were " New and Material " and never acquired by the Va.

Also in 2006, It became light that the VA, also never acquired my Personel Records, which also were silent in the archives for 40 years.

These records also became " New and Material". These records included my request for transfer.

If you go to the BVA site under decisions, type in Service department Records and you can read the different cases.

These will give you a complete detail of what is considered Service Department Records.

I am sure that there are others, but these pretain to my claim.

We are only fighting over 30 years of retro pay.

I too had that " Favorable" decision, but the VA got rid of that one fast in less than 5 months. This is where the Mariano v. Principi, 17 Vet. App. 305, 312 comes into play.

The VA has definitely made a decision on my claim, but the Rating Supervisor still has not signed off on it.

I am going to try tomorrow and see if I can't flirt or whatever it takes to get Lidel to tell me the decision.

I talked to him today, he has been promoted to Claims Adjustor.

Always,

Betty

Hi Betty

I spoke to Lidel today too. I m trying to find out if my claims file had returned to AMC. I wished him well in his new promotion. Maybe you could ask him if this decision is something "you want to read or not.' This is a noncomital way for him to give the answer.

So what agencies would have these service department records?

I guess I better read Mariano v. Principi, 17 Vet. App. 305, 312

Paul

off to do some reading

Link to comment
Share on other sites

  • HadIt.com Elder

Paul,I will try to catch Lidel, and ask him if I would want to know the decision.I ask him today, if I would be having another C&P and he hollered and laughed and said, No!He is a wonderful guy and he will go the whole nine years to help you.Thanks,Betty

Paul,I will try to catch Lidel, and ask him if I would want to know the decision.I ask him today, if I would be having another C&P and he hollered and laughed and said, No!He is a wonderful guy and he will go the whole nine yards to help you.Thanks,Betty
Link to comment
Share on other sites

Guest
This topic is now closed to further replies.


  • veterans-crisis-line.jpg
    The Veterans Crisis Line can help even if you’re not enrolled in VA benefits or health care.

    CHAT NOW

  • question-001.jpeg

    Have Questions? Get Answers.

    Tips on posting on the forums.

    1. Post a clear title like ‘Need help preparing PTSD claim’ or “VA med center won’t schedule my surgery instead of ‘I have a question.
       
    2. Knowledgeable people who don’t have time to read all posts may skip yours if your need isn’t clear in the title.
      I don’t read all posts every login and will gravitate towards those I have more info on.
       
    3. Use paragraphs instead of one massive, rambling introduction or story.
       
      Again – You want to make it easy for others to help. If your question is buried in a monster paragraph, there are fewer who will investigate to dig it out.
     
    Leading too:

    exclamation-point.pngPost straightforward questions and then post background information.
     
    Examples:
     
    • Question A. I was previously denied for apnea – Should I refile a claim?
      • Adding Background information in your post will help members understand what information you are looking for so they can assist you in finding it.
    Rephrase the question: I was diagnosed with apnea in service and received a CPAP machine, but the claim was denied in 2008. Should I refile?
     
    • Question B. I may have PTSD- how can I be sure?
      • See how the details below give us a better understanding of what you’re claiming.
    Rephrase the question: I was involved in a traumatic incident on base in 1974 and have had nightmares ever since, but I did not go to mental health while enlisted. How can I get help?
     
    This gives members a starting point to ask clarifying questions like “Can you post the Reasons for Denial of your claim?”
     
    Note:
     
    • Your first posts on the board may be delayed before they appear as they are reviewed. This process does not take long.
    • Your first posts on the board may be delayed before they appear as they are reviewed. The review requirement will usually be removed by the 6th post. However, we reserve the right to keep anyone on moderator preview.
    • This process allows us to remove spam and other junk posts before hitting the board. We want to keep the focus on VA Claims, and this helps us do that.
  • Most Common VA Disabilities Claimed for Compensation:   

    tinnitus-005.pngptsd-005.pnglumbosacral-005.pngscars-005.pnglimitation-flexion-knee-005.pngdiabetes-005.pnglimitation-motion-ankle-005.pngparalysis-005.pngdegenerative-arthitis-spine-005.pngtbi-traumatic-brain-injury-005.png

  • VA Watchdog

  • Can a 100 percent Disabled Veteran Work and Earn an Income?

    employment 2.jpeg

    You’ve just been rated 100% disabled by the Veterans Affairs. After the excitement of finally having the rating you deserve wears off, you start asking questions. One of the first questions that you might ask is this: It’s a legitimate question – rare is the Veteran that finds themselves sitting on the couch eating bon-bons … Continue reading

×
×
  • Create New...

Important Information

{terms] and Guidelines