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ptsd Good Bva Decision For Eed Back To 1971 - Ptsd
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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
Carlie passed away in November 2015 she is missed.
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