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Good Bva Decision For Eed Back To 1971 - Ptsd

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carlie

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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

Carlie passed away in November 2015 she is missed.

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  • HadIt.com Elder

Let me ask, if one were to request sc for 'trauma disorder' on original claim, then get sc for a psych malady such as dysthimia (with pd), then later sc for somatization disorder, then later sc mdd with mst and ptsd, without keeping the claim open for specfically 'trauma (which should have been ptsd), is it possible to reconnect the dots to the original request base on what I read here? or is it done? just a curious cg here.

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

For my children, my God sent husband and my Hadit family of veterans, I carry on.

God Bless A m e r i c a, Her Veterans and their Families!

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cg,

1) What is the Diagnostic Code VA originally Denied your Mental Health Claim under ?

2) What is the Diagnostoc Code VA has Granted you Mental Health Claim under ?

You can PM it to me if you want.

carlie

Carlie passed away in November 2015 she is missed.

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  • HadIt.com Elder

Ok Carlie, will get it to you soon. thanks, cg

For my children, my God sent husband and my Hadit family of veterans, I carry on.

God Bless A m e r i c a, Her Veterans and their Families!

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I think some of their standards are set by law, some by the court decision, and some by precendence and their own regualtions.

And then, they have some leeway.

So the "standards" are the LEAST that you can expect - but you can get more with the leeway.

So if you don't get what MOST PEOPLE get - in a way that MOST PEOPLE get it - you can have a basis to complain. (technically)- as they are going against precedence.

But if you get THE same as MOST PEOPLE get in SAME ways - then, even if SOME people get more or different, or better - they would say you don't technically have the right to complain.

So as long as they meet the benchmark - or exceed it - they are pretty much covered, even if they don't exceed it in your case, a much as they did in other cases - or even if they only met it in your case and exceeded it in others.

But you are totally right - it doesn't seem fair and it doesn't make sense sometimes. That is why I think it is important to look to see what they GENERALLY decide and how they GENERALLY decide it - to learn how to develop a claim.

One or two cases can be misleading. Read lots of claims that are similar to yours and look for the patterns of what is generally done in those cases - That gives you an idea of the becnhmark - and what you have to do to meet it.

I have looked up quite a few cancer cases - (and will look up more, especially concerning post service diagnosis.

One thing I found insipring was when I typed in a search for "cancer" and "doubling time" - I saw GRANTED, GRANTED, GRANTED.

Not remands - Many granted.

So I looked at the differences between those the VA granted and those they denied. The difference was in the medical opinions.

Most anyone going in with one or two strong medical opinions that STATE what is known and assumed to be true about cancer growth rates- as long as the doctor stated it -- and wasn't stretching it on the time frame (i.e. it was a cancer that's growth rate would have made it close (was it 3 years? or 4 years? is close. --Was it 2 years? or 15 years? is not close) - those were granted. The BVA is already aware that medically accepted standards indicate a cancer has to double a certain amount of times to reach a certain size - and each cancer has it's pretty standard range of growth.

But those who went in with no IMO ran a risk. Sometimes the BVA would get a Medical Opinion that granted it. Other times they would get one of those Medical Opinions that stated "the onset of cancer is when it is diagnosed."

Any decent doctor could blow that out of the water. but if the vet (or usually widow) didn't HAVE an medical opinion - the ONLY medical evidence of record was against the claim.

I think a big difference too - was that many of these claims were widows claims - and they could be represented by lawyers at the BVA level. (They are not a vet). So the VA couldn't blow them off quite as easily.

But they did start creating a precendence.

I WILL send some of the BVA opnions with my claim evidence.

They BVA does not HAVE to go by them. But showing that there are quite a few SC's for cancer granted on the SAME theory will help show that this theory is NOT new to the VA, it is NOT unusual - In fact - it is a pretty STANDARD argument - and an arguement that has commonly been accepted by the VA.

There are even some cases where the BVA itself used treatises evidence of THEIR OWN to back it. There are also decisions where they quote the ARMED FORCES Institute of Pathology stating the same thing about growth rates.

Did the Armed Forces Institute of Pathology discuss my husband's cancer specifically? No. but the IMO will - as does out treatises evidence.

So - yep - gonna include some of those decisions.

And MY OWN summary - Dr. IMO stated ____. This is a MEDICALLY ACCEPTED STANDARD. - This is the SAME standard used by the Armed Forces Institute of Pathology in BVA case ___, and BVA case ___, and BVA case ____.

So they almost HAVE to buy the THEORY of growth rates - the only thing left would be showing that my husband's cancer more likely than not did NOT grow FIFTEEN TIMES FASTER than the "typical" adenocarcinoma.

I highly doubt that it did - unless it slowed down quite a bit once it got into late stages.

Free

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

Think Outside the Box!
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  • HadIt.com Elder

cg - yes, I think ya could! jmo

pr

Let me ask, if one were to request sc for 'trauma disorder' on original claim, then get sc for a psych malady such as dysthimia (with pd), then later sc for somatization disorder, then later sc mdd with mst and ptsd, without keeping the claim open for specfically 'trauma (which should have been ptsd), is it possible to reconnect the dots to the original request base on what I read here? or is it done? just a curious cg here.
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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 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.

It looks like in this case the veteran kept his case open up to the level of the BVA. And this would have been at a time where the BVA was the highest level.

So it looks like the BVA denied it also. I was wondering why the case had to go to the BVA THIS time, as the RO had already granted the earlier effective date. It might be because the RO didn't have the right to over rule the BVA's earlier decision - so the case still had to go through THEM to reverse THEIR earlier decision.

And as the veteran had kept the claim open to the extent that he could - he never let the claim die - and the BVA had the right to reverse their "final" decision.

I think for your question that some of it depends on the specifics of the case. If you didn't appeal - the situation would be different. But that wouldn't neccessarily have to work against you. THe RO and the BVA both have the right (but not always the duty) to reverse an earlier decision.

I think that in the case at point - it had to go to the BVA because the RO couldn't reverse the earlier decision of the BVA - They could only reverse their own.

So the fact that BOTH the RO and BVA reversed their earlier decisions is a good sign. If you didn't appeal - the RO MIGHT be able to reverse their earlier decision at THEIR level - as long as they don't get hung up on the whether or not you appealed factor.

Though we know of a lot of the negative decisions of the ROs - and the BVA decisions (the good, the bad, and the ugly)I imgaine their are MANY favorable decisions made at the RO level that we are not aware of.

I think this is well worth researching and finding the reasoning used to overturn these earlier decisions at BOTH levels - because they didn't really know about PTSD then - nor did anyone.

So here was a disorder that many vets suffered from - that wasn't even acknowledged.

The disorder was already there - but they didn't have a lable to put on it because they didn't know about it.

So yes, once they find out about the label - they SHOULD be able to go back and say - Now that we know what PTSD is - does this person has signs of that BACK THEN? And they SHOULD be able to grant SC back to that point.

It would be worth it to spend some time looking for cases in which these earlier decisions were reversed - and building some reasoning around it - especially if you have medical opinions that support that you were displaying signs of PTSD at the time you originally filed.

I know one of the things about PTSD is it often does not show up until later (i.e. the POST traumatic). However, the chain of claims you WERE granted for could even connect the dots for that. Had you NOT been diagnosed with PTSD - then the other disorders would be what they were. But WITH the later PTSD diagnosis, an argument could be that the earlier conditions that you WERE granted SC for - were actually manifestations of PTSD.)

Free

Let me ask, if one were to request sc for 'trauma disorder' on original claim, then get sc for a psych malady such as dysthimia (with pd), then later sc for somatization disorder, then later sc mdd with mst and ptsd, without keeping the claim open for specfically 'trauma (which should have been ptsd), is it possible to reconnect the dots to the original request base on what I read here? or is it done? just a curious cg here.
Think Outside the Box!
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