Citation Nr: 1525181 Decision Date: 06/12/15 Archive Date: 06/19/15 DOCKET NO. 14-04 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to an effective date prior to August 7, 2006, for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Thomas J. Reed, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1999 to July 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Wilmington, Delaware Department of Veterans Affairs (VA) Regional Office (RO). In September 2014, a hearing was held before the undersigned in Washington D.C.; a transcript of the hearing is in the record. At the hearing, the Veteran submitted additional evidence with a waiver of RO review. He also requested, and was granted, a 60-day abeyance period for submission of additional evidence; no such evidence was received. As this decision grants the benefit sought, development to secure/solicit submission of the outstanding evidence is not necessary. FINDINGS OF FACT 1. A February 2004 rating decision granted the Veteran service connection for adjustment disorder and assigned an effective date of July 24, 2003, the day following the date of his separation from service (July 23, 2003). 2. The September 2008 rating decision granted the Veteran service connection for PTSD, based in part on a correction of his military records to indicate that he served in combat, and acknowledgment (based on the findings of a September 2008 VA examination) that his service-connected psychiatric disability previously diagnosed as adjustment disorder had been misdiagnosed, and was in fact PTSD. CONCLUSION OF LAW An earlier effective date of July 24, 2003 is warranted for the grant of service connection for PTSD. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.156(c), 3.400 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA applies to the instant claim. However, as the benefit sought is being granted, there is no reason to belabor the impact of the VCAA on the matter; any notice or duty to assist omission is harmless. At the hearing before the undersigned the Veteran was advised generally of the criteria governing effective daters of awards of service connection. Legal Criteria, Factual Background, and Analysis Except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. If a claim is received within one year following separation the effective date of an award of compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). If at any time after VA issues a decision on a claim, VA receives or associates with the record relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding 38 C.F.R. § 3.156(a). Such records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease. 38 C.F.R. § 3.156(c)(1). Records that are not included are records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2). An award made based all or in part on the records identified by 38 C.F.R. § 3.156(c)(1) is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A brief procedural and medical history is needed to clarify the instant claim. On November 2003 VA PTSD examination scheduled in connection with the Veteran's initial claim of service connection for PTSD, the diagnosis was adjustment disorder. The examiner found that the Veteran did not meet the criteria for a diagnosis of PTSD, in part because he was not shown to have a stressor event in service sufficient to support such diagnosis. A February 2004 rating decision granted him service connection for adjustment disorder, effective July 24, 2003, the day following the date of his separation from service (July 23, 2003). He filed a notice of disagreement with that decision in May 2004, noting he had filed a claim seeking service connection for PTSD, but did not perfect the appeal after the statement of the case (SOC) was issued. [At the September 2014 Board hearing he asserted he had not received the SOC because he had moved.] On August 7, 2006, he again filed a claim of service connection for PTSD. A July 2007 rating decision denied him service connection for PTSD, based on a finding that he did not have a diagnosis of PTSD related to a stressor in service corroborated by credible supporting evidence. In September 2008, he submitted a DD Form 215 issued in September 2008 showing he was awarded a Combat Action Ribbon (CAR). Based on the submission of this official document, the RO arranged for a VA PTSD examination of the Veteran in September 2008. The September 2008 examiner diagnosed PTSD and noted that if the Veteran's alleged stressors were verified, his "prior diagnosis of adjustment disorder is the same as his current PTSD diagnosis." The September 2008 rating decision on appeal granted the Veteran service connection for PTSD, effective August 7, 2006. It was that noted the Veteran's claimed stressor in service was conceded because his service personnel records show he served in combat, and that the VA examiner had indicated that "your adjustment disorder is the same as your PTSD diagnosis as your stressors have been verified." In essence, the RO found the correction of the Veteran's service personnel records that showed he served in combat warranted reconsideration of his claim of service connection for a psychiatric disability and then found that his service-connected psychiatric disability had been misdiagnosed as adjustment disorder, but in fact was PTSD. In other words, the RO found the Veteran had PTSD all along since his discharge from service, but that it was initially misdiagnosed on VA examination because all necessary facts were not known to the examiner. In summary, the September 2008 rating decision granting service connection for PTSD did not award service connection for a new (and distinct from that previously service connected) psychiatric disability, but merely corrected the characterization of the psychiatric entity previously service connected from the diagnosis of adjustment disorder to one of PTSD. As the adjustment disorder diagnosis was found incorrect, and the diagnosis of PTSD is substituted in its place, it logically follows that the substitution should take effect ab initio, from July 24, 2003. Accordingly, the proper effective date for the grant of service connection for PTSD is July 24, 2003. ORDER An earlier effective date of July 24, 2003 is granted for the award of service connection for PTSD. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs