ptsd Good Bva Decision For Eed Back To 1971 - Ptsd

[carlie]

Yes, I know BVA isn't binding on all claim - but this one is really good for research.

Hope this helps a vet.

carlie

http://www.va.gov/vetapp07/files5/0741018.txt

Citation Nr: 0741018

Decision Date: 12/31/07 Archive Date: 01/03/08

DOCKET NO. 98-14 730 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in San Juan,

the Commonwealth of Puerto Rico

THE ISSUE

Entitlement to an effective date prior to December 5, 1973

for a grant of entitlement to service connection for post-

traumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Nadine W. Benjamin, Counsel

INTRODUCTION

The veteran served on active duty from October 1969 to April

1971. This matter comes to the Board of Veterans' Appeals

(Board) on appeal from a December 1997 rating decision of the

Department of Veterans Affairs (VA) Regional Office (RO) in

Oakland, California. The RO in San Juan, Commonwealth of

Puerto Rico has assumed jurisdiction.

In February 1999, the veteran appeared before a Veterans Law

Judge (then Member of the Board) and presented testimony in

support of his claim. That individual is no longer employed

at the Board. The Veterans Law Judge who holds a hearing is

required to participate in making the final determination of

the claim. 38 C.F.R. § 20.707 (2007). The veteran has not

been notified of his right to an additional hearing; however

in view of the Board's decision below, which is a full grant

of the benefit sought, notification regarding this is

unnecessary.

In September 1999, the Board remanded this claim to the RO

for additional development. The case has been returned to

the Board and is ready for further review.

FINDINGS OF FACT

1. The veteran was discharged from service on April 19,

1971.

2. The veteran submitted his original claim for service

connection for a nervous disorder in August 1971, within one

year of service discharge.

3. In September 1971, the RO denied service connection for a

nervous disorder. The veteran submitted a timely notice of

disagreement in August 1972.

CONCLUSION OF LAW

The veteran is entitled to an effective date of April 20,

1971, for the grant of service connection for PTSD. 38

U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000

(VCAA), the United States Department of Veterans Affairs (VA)

has a duty to notify and assist claimants in substantiating a

claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,

5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R.

§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

Upon receipt of a complete or substantially complete

application for benefits, VA is required to notify the

claimant and his or her representative, if any, of any

information, and any medical or lay evidence, that is

necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);

38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.

183 (2002). Proper notice from VA must inform the claimant

of any information and evidence not of record (1) that is

necessary to substantiate the claim; (2) that VA will seek to

provide; (3) that the claimant is expected to provide; and

(4) must ask the claimant to provide any evidence in her or

his possession that pertains to the claim in accordance with

38 C.F.R. § 3.159(b)(1). This notice must be provided prior

to an initial unfavorable decision on a claim by the agency

of original jurisdiction (AOJ). Mayfield v. Nicholson, 444

F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.

App. 112 (2004).

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S.

Court of Appeals for Veterans Claims held that, upon receipt

of an application for a service-connection claim, 38 U.S.C.

§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the

information and the evidence presented with the claim and to

provide the claimant with notice of what information and

evidence not previously provided, if any, will assist in

substantiating, or is necessary to substantiate, each of the

five elements of the claim, including notice of what is

required to establish service connection and that a

disability rating and an effective date for the award of

benefits will be assigned if service connection is awarded.

Here, the veteran is challenging the effective date assigned

following the grant of service connection. In Dingess, the

Court of Appeals for Veterans Claims held that in cases where

service connection has been granted and an effective date has

been assigned, the typical service-connection claim has been

more than substantiated, it has been proven, thereby

rendering section 5103(a) notice no longer required because

the purpose that the notice is intended to serve has been

fulfilled. Id. at 490-91. Here however, notice as to the

service connection claim was not provided. The veteran was

provided with a notice letter in September 2003 regarding

earlier effective dates. This letter was not fully

compliant. However, there is no prejudice to the veteran in

deciding the claim at this time. VA has satisfied its duty

to notify and assist to the extent necessary to allow for a

grant of the claim to the fullest extent possible under the

law. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).

In light of the Board's instant decision, which constitutes a

full grant of benefits sought by the veteran on appeal, a

full and detailed analysis of VA's compliance with these

requirements is not needed, as the veteran could derive no

potential benefit from any additional development or notice.

Earlier Effective Date

The veteran seeks an effective date prior to December 5, 1973

for the grant of service connection for PTSD. Generally, the

effective date of an award of a claim is the date of receipt

of the claim or the date entitlement arose, whichever is

later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The

effective date for an award of service connection shall be

the day after separation from service or the date entitlement

arose, if the claim is received within one year of separation

from service, otherwise it is the date of receipt or the date

entitlement arose, whichever date is later. 38 U.S.C.A. §

5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2007).

The record reflects that the veteran was discharged from

military service on April 19, 1971. In August 1971, he

submitted a VA Form 07-3288, to VA referencing his service

connection claim for several disorders, including a nervous

disorder. The claim for an anxiety disorder was denied in a

rating action of September 1971. In a June 1972 rating

action, the RO confirmed and continued the previous

determination. The veteran timely disagreed with that

determination in August 1972.

In January 1974, the RO confirmed the September 1971 rating

action. In November 1990, the RO found that there was no new

and material evidence to reopen the claim for service

connection for PTSD after the veteran submitted a claim in

February 1990. In October 1994, the RO confirmed and

continued the denial. Thereafter, the claim remained open

and pending until August 1997, when the RO granted service

connection for PTSD and granted a 100 percent evaluation

effective from February 1, 1990, which at that time the RO

determined was the date of the veteran's claim to reopen. In

December 1997, the RO granted an earlier effective date for

grant of service connection for PTSD and the grant of a 100

percent evaluation to July 21, 1989.

In November 2005, the RO found that the veteran's claim had

remained open since he submitted an August 1972 notice of

disagreement to the September 1971 and June 1972 RO

decisions, and granted an earlier effective date for the

grant of service connection for PTSD to December 5, 1973.

The RO based the assignment of the December 5, 1973 effective

date on a VA medical expert's April 2004 opinion that the

veteran's PTSD was first manifested at a VA December 1973

examination.

As noted above, the effective date for service connection

when a veteran files a claim within a year of discharge is

the date of the day following the date of separation from

service or the date entitlement arose. Therefore, the

correct effective date for the grant of service connection

for the veteran's PTSD is the day after his separation from

service-April 20, 1971, since his claim for service

connection was received in August 1971. See 38 U.S.C.A. §

5110(b)(1) (West 2002) (the effective date of an award of

service connection will be the day following separation from

service, if a claim was received within one year of service

separation).

ORDER

An effective date of April 20, 1971, for the grant of service

connection for PTSD is granted.

____________________________________________

P.M. DILORENZO

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

[Testvet]

damn that was and is a "lottery win" can we say new car, bike and house maybe even a boat that was a chit load of back pay and he deserved it how do they make up the past 35 years of his life?

[cowgirl]

Carlie, thank you this is very interesting. It doesnt say here that the veteran claimed specifically PTSD. Maybe I missed that. (Know both of are part of ptsd) cg

The record reflects that the veteran was discharged from

military service on April 19, 1971. In August 1971, he

submitted a VA Form 07-3288, to VA referencing his service

connection claim for several disorders, including a nervous

disorder. The claim for an anxiety disorder was denied in a

rating action of September 1971. In a June 1972 rating

action, the RO confirmed and continued the previous

determination. The veteran timely disagreed with that

determination in August 1972.

[Philip Rogers]

Cowgirl, I don't think PTSD became an accepted psychiatric malady/diagnosis until around 1981 and therefore couldn't be claimed in 1971. jmo

pr

[john999]

Right, in the old days you would be granted service connection for a "nervous condition". I was given a 10% rating for a nervous condition in 1971 with an effective date of the day after discharge. If you came back from the service acting weird they would diagnosis you with a standard condition like depression, anxiety or psychosis if you were really nuts. Did they even grant SC for combat fatigue, or did it evolve into some other form of mental illness diagnosis?

[free_spirit_etc]

Good point. Also - since the VA considers you a "lay person unable to issue a medical opinion" they can't really expect you to diagnose yourself.

They play that game a lot too. You report symptoms and think it is something - and they deny because it is not what you thought it was.

But they need to take it a step further and see if whatever it IS - is caused by the service.

I think they make a lot of errors on this.

For instance my husband thought his headaches might be caused from Desert Storm. The C&P examiner said they were caused by:

1. Chronic Sinutitis - which was diagnosed in service and treated quite often.

2. From an injury to his neck (which was also the result of service - and he had claimed earlier and been denied because they said there was no current injury. But they DID find a SLIGHT separation of disks RIGHT AT THE SAME PLACE the C&P doctor showed had worsened - and was causing his headaches.)

But the RO totally disregarded that the C&P doctor gave TWO service related causes for his headaches - and denied the claim because they weren't a "Desert Storm illness."

They made the profound statement that he wasn't entitled to SC "because your headaches have been diagnosed as headaches."

My husband never got his C&P reports back then. We discovered this much later when working on his cancer claim.

So lesson #1

1. Get your records - and see if the doctor actually said what the VA says they said. (That would have been an EASY appeal to win - Well, yeah - they were not a Desert Storm illness - but caused by conditions apparent in service)

(Of course the RO said that he had only been treated a couple times in service (untrue) for the Sinus and so it wasn't chronic - and they failed to mention that the C&P doctor had said that the condition was diagnosed as chronic IN the service by Xrays and tissue changes)

2. Don't get so stuck on one theory or one illness that you miss the ones that are there.

My husband totally missed to notice (wait a minute - I had sinus problems in service - and I claimed te neck injury at discharge and they said nothing was wrong with my neck).

Sometimes - even within the denials - they give you the keys to a different claim, or the same claim under a different theory of entitlement.

However, the RO SHOULD have went ahead and granted it based on the C&P doc stating they were service related (but from a different CAUSE than my husband had thought.)

But the RO doesn't always do what the RO SHOULD do.

If the vet isn't qualified to issue medical opinions - they cannot expect them to diagnose themselves or issue an opinion on causation.

The RO played the causation game with my husband, instead of acknowledging they were service related from a different cause.

Free

Cowgirl, I don't think PTSD became an accepted psychiatric malady/diagnosis until around 1981 and therefore couldn't be claimed in 1971. jmo

pr

[carlie]

I feel the underlined parts are the reason BVA decided to grant the claim with the earliest effective date possible.

In January 1974, the RO confirmed the September 1971 rating

action. In November 1990, the RO found that there was no new

and material evidence to reopen the claim for service

connection for PTSD after the veteran submitted a claim in

February 1990. In October 1994, the RO confirmed and

continued the denial. Thereafter, the claim remained open

and pending until August 1997, when the RO granted service

connection for PTSD and granted a 100 percent evaluation

effective from February 1, 1990, which at that time the RO

determined was the date of the veteran's claim to reopen. In

December 1997, the RO granted an earlier effective date for

grant of service connection for PTSD and the grant of a 100

percent evaluation to July 21, 1989.

In November 2005, the RO found that the veteran's claim had

remained open since he submitted an August 1972 notice of

disagreement to the September 1971 and June 1972 RO

decisions, and granted an earlier effective date for the

grant of service connection for PTSD to December 5, 1973.

The RO based the assignment of the December 5, 1973 effective

date on a VA medical expert's April 2004 opinion that the

veteran's PTSD was first manifested at a VA December 1973

examination

pr is correct regarding,"PTSD became an accepted psychiatric malady/diagnosis until around 1981",

so I don not understand how the BVA approved it back to day following separation, this vets

claim right after discharge was for an unspecified nervous disorder .

With the claim being filed within one year of separation and remaining open, I can understand BVA granting the day following discharge as an effective date - for an unspecified nervous disorder

with staged ratings from 1971 forward, until a PTSD diagnosis was made.

As I stated in the start of this thread, I know BVA decisions are not binding on all claims ---

what I'd like to know is how can and why are there, such drastic differences allowed and made on claims ? Aren't BVA Judges supposed to have a standardized understanding of the laws and

regulations ?

I feel the only reason this claim and EED back to 1971 was granted is due to the way the BVA Judge interpreted the regulations and that certainly another Judge would have ruled differently.

I am no doubt happy for this veteran - but how about all the others in line with the same type of claim ?

carlie