BVA9505885 DOCKET NO. 93-09 863 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an effective date earlier than May 14, 1990 for the grant of service connection for post-traumatic stress disorder with dysthymic disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from September 1944 to July 1946. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that the regional office (RO) committed error in not assigning an effective date earlier than May 14, 1990 for the grant of service connection for post-traumatic stress disorder with dysthymic disorder. In particular, the veteran contends that he is entitled to an effective date of May 1985 for the grant of service connection for this disorder. The veteran claims that he suffered a nervous condition caused by his wartime experiences prior to May 1990. In addition, he maintains that he submitted prior claims of entitlement to service connection for this disorder but that these claims were denied by the RO and the Board of Veterans' Appeals (Board). He also claims that he received treatment for this disorder in December 1989. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for an effective date earlier than May 14, 1990 for the grant of service connection for post-traumatic stress disorder with dysthymic disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. A Board decision of March l988 affirmed on reconsideration the Board's earlier decision of November l986 denying service connection for a psychiatric disorder. 3. The veteran's petition to reopen his claim of entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder, was received at the RO on May 14, 1990. CONCLUSIONS OF LAW 1. The Board decision of March l988 was a final appellate determination on the issue of service connection for a psychiatric disorder. 38 U.S.C.A. §§ 7103, 7104 (West l99l); 38 C.F.R. §§ 20.302(a), 20.1100(a) (1994). 2. The effective date for the grant of service connection for post-traumatic stress disorder with dysthymic disorder is May 14, 1990, the date of receipt of the veteran's petition to reopen his claim for such benefit. 38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. §§ 3.155, 3.157(b)(1)(2), 3.400(q) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that the veteran has presented a claim which is plausible. The Board is also satisfied that all relevant facts have been properly developed. In this regard, the Board finds that all pertinent clinical data have been obtained, including medical reports dated during the relevant time frame. The Board notes that, in the substantive appeal, which was received at the RO in January 1993, the veteran contended that the last time he had received treatment at the VA Medical Center in Beckley, West Virginia was in December 1989. However, in February 1992 the RO received records of treatment that the veteran received a the local VA medical facility in December 1990 and in January 1986. Any records of treatment that the veteran received at the VA medical facility in between these two dates would have been obtained when these two sets of records were forwarded to the RO. In addition, an August 1990 note from the Beckley VA Medical Center indicated that the veteran had not been treated at that facility since January 1986. Consequently, as sufficient data exist to address the merits of the veteran's claim, the Board concludes that the VA has adequately fulfilled its statutory duty to assist the veteran in the development of his claim. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v. Derwinski, 1 Vet.App. 90 (1990). A review of the claims folder indicates that in a September 1961 rating decision, the RO denied the veteran's claim of entitlement to service connection for nervousness. The RO based its decision on the service medical records, which failed to show complaints of, treatment for, or findings of a nervous disorder and on the lack of any such evidence within one year after the veteran's separation from service. The RO concluded that, even if the veteran presently had a nervous disorder, the lack of prior evidence of such a disability during or immediately after service precluded the grant of service connection for a nervous disorder. The veteran was notified of this rating decision in October 1961 but did not file a timely appeal. Subsequently, in an April 1983 rating decision, the RO denied the veteran's petition to reopen his claim of entitlement to service connection for a nervous condition. The RO noted that the additional evidence submitted by the veteran showed that he was, at that time, receiving treatment for severe anxiety and insomnia. However, the RO denied the veteran's petition to reopen his claim on the basis that this evidence did not relate the veteran's present nervous disorder with his military service. The veteran was notified of this rating decision in the same month. He did not file a timely appeal. In a March 1984 rating decision, the RO confirmed this denial of the veteran's petition to reopen his claim of entitlement to service connection for a nervous disorder. The RO concluded that the additional evidence submitted by the veteran did not relate any nervous disorder he may have had at that time to his military service. The veteran was notified of this decision in April 1984. He did not file a timely appeal. Subsequently, in a June 1985 rating decision, the RO confirmed its prior denial of the veteran's petition to reopen his claim of entitlement to service connection for a nervous disorder. The RO noted that the additional evidence submitted by the veteran included his own statements of being knocked down in a tank by German artillery during service. Although the veteran presented statements of persons with whom he served who verified this in-service episode, the RO noted that the veteran did not require any treatment for the cited incident. Consequently, the RO concluded that the veteran had not submitted new and material evidence to relate the veteran's claimed nervous disorder to his service. The veteran was notified of this rating decision in June 1985. The veteran filed a timely appeal of the June 1985 rating decision. In a November 1986 decision, the Board denied the veteran's claim of entitlement to service connection for a psychiatric disability. According to the Board's decision, the service medical records were absent for any complaints of, treatment for, or findings of a nervous disorder. In addition, the Board noted that the veteran's nervous condition, variously diagnosed as anxiety tension and/or depressive reaction, was not first confirmed until many years after the veteran's separation from service. Subsequently, in a March 1988 reconsideration decision, the Board concluded that its November 1986 denial of the veteran's claim of entitlement to service connection for a psychiatric disorder was fully supported by the evidence of record at the time of that earlier decision and did not contain substantive errors of fact or law. Consequently, the Board affirmed its November 1986 decision denying the veteran's claim. The law clearly states that, when a case is heard by an expanded section of the Board after a motion for reconsideration, the decision of a majority of the members of the expanded section constitutes the final decision of the Board. 38 U.S.C.A. § 7103(b) (West 1991). On May 14, 1990, the RO received the veteran's reopened claim of entitlement to service connection for a nervous disorder. The RO initially denied the claim of entitlement to service connection for an anxiety disorder with depression and claimed post-traumatic stress disorder, in an October 1990 rating decision. However, after the Board's December 1991 remand, the RO, in an August 1992 rating decision, granted service connection for post-traumatic stress disorder with dysthymic disorder, effective May 14, l990. Throughout the present appeal, however, the veteran has contended that he has suffered from a nervous condition caused by his wartime experiences prior to May 1990. He has asserted that he is entitled to an effective date of May 1985 for the grant of service connection for post-traumatic stress disorder. The law and regulations clearly state that the effective date of an award of a claim reopened after final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400(q) (1994). However, certain evidence may be considered an informal claim. According to the regulations, the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. In addition, the date of receipt of evidence from a private physician or layman will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157(b)(1)(2) (1993). See also, 38 C.F.R. § 3.155 (1994) (communications or actions from a claimant; his or her duly authorized representative including a service organization, an attorney, or an agent; a Member of Congress; or some person acting as a next friend of a claimant who is not sui juris may be considered an informal claim). After the Board's final March 1988 denial, on reconsideration, of the veteran's claim, he submitted a reopened claim for service connection for post-traumatic stress disorder which was received at the RO on May 14, 1990. No private medical or lay statements were received at the RO prior to this date. In addition, there is no evidence of record that shows that the veteran received additional VA treatment for post-traumatic stress disorder, or any other psychiatric disorder, prior to this date but after March 1988, the date of the Board's final decision. The Board notes that the veteran received treatment at the Beckley VA Medical Center in January 1986 for a nervous disorder. Significantly, however, this evidence discusses the extent of the veteran's mental condition during the time period covered by the Board's March 1988 reconsideration decision which is final. Consequently, no additional medical evidence has been received at the RO pursuant to the present appeal which demonstrates treatment for post-traumatic stress disorder or a dysthymic disorder. The Board again notes that, in the substantive appeal which was received at the RO in January 1993, the veteran contended that the last time he had received treatment for his psychiatric disorder, to include post-traumatic stress disorder, at the VA Medical Center in Beckley, West Virginia was in December 1989. However, in February 1992 the RO received records of treatment that the veteran received at the local VA medical facility in December 1990 and in January 1986. Any records of treatment that the veteran received at the VA medical facility between these two dates would have been obtained when these two sets of records were forwarded to the RO. Furthermore, an August 1990 note from the Beckley VA Medical Center indicated that the veteran had not been treated at that facility since January 1986. The veteran did not receive treatment at a VA facility after March 1988 and before May 14, 1990. In addition, no private physician or lay statements were received at the RO between these two dates. No communications or actions from the veteran, his duly authorized representative, a Member of Congress, or some person acting as a next friend of the veteran who is not sui juris were received at the RO during this time period. Therefore, no evidence which can be construed as an informal claim had been received by the RO after March 1988 but before May 14, 1990. 38 C.F.R. §§ 3.155, 3.157(b)(1)(2) (1994). Consequently, the effective date of the grant of service connection for post-traumatic stress disorder with dysthymic disorder cannot be earlier than May 14, 1990, the date that the RO received the veteran's reopened claim for service connection. ORDER An effective date earlier than May 14, 1990 for the grant of service connection for post-traumatic stress disorder with dysthymic disorder is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.