Citation Nr: 0004190 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 92-13 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for cervical spine disability. 3. Entitlement to an effective date earlier than July 31, 1991, for service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: James W. Stanley, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from March 1968 to August 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. This case was the subject of a Board action dated in October 1995 which denied the claim for an earlier effective date for PTSD, and remanded to the RO the claims for a low back disorder and a cervical spine disorder. All three claims were appealed to the Court of Appeals for Veterans Claims (Court). The appeals before the Court with respect to claims for service connection for a low back disorder and a cervical spine disorder were dismissed on the ground the Board had not rendered a final decision on these issues. The Board's denial of the issue of an earlier effective date for service connection for PTSD was vacated by the Court in April 1998, and returned to the Board for further development and readjudication, on the basis of all applicable law and regulation, and issuance of a readjudicated decision supported by an adequate statement of reasons and bases. The issues of entitlement to service connection for a low back disability and a cervical spine disability are addressed in the REMAND portion of this action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Notice of a June 1990 rating decision which denied service connection for PTSD was mailed by the RO on July 11,1990, to the incorrect address. The veteran's correct address at the time was reflected in two pieces of correspondence from the veteran received by the VA "Foreign Services Unit" in April 1990 and received by the RO in Washington, D.C., in June 1990. The new address was documented in the claims file prior to the time of the July 1990 letter containing notice of the June 1990 rating decision. 3. The veteran did not receive notice of the July 1990 rating decision which denied service connection for PTSD. 4. The date of claim with respect to the July 1990 denial of service connection for PTSD was October 11, 1989, the date on which a VA physician diagnosed PTSD during a VA compensation examination. 5. On July 31, 1991, the RO received correspondence from the veteran's representative requesting reconsideration of the claim for service connection for PTSD. In January 1992 the veteran submitted a notice of disagreement. In February 1992 the RO issued a statement of the case. In March 1992 a Form 9 was received by the RO. 6. In a June 1994 hearing officer's decision, service connection for PTSD was granted. The award was effective July 31, 1991, the date upon which the RO received the representative's request that the claim for service connection for PTSD be reconsidered. CONCLUSION OF LAW The criteria for an award of an effective date of October 11, 1989, for service connection for PTSD, have been met. 38 U.S.C.A. §§ 1155, 5110 (West 1991); 38 C.F.R. §§ 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background On October 11, 1989, the veteran was diagnosed as having PTSD during a VA examination. Notice of a June 1990 rating decision which denied service connection for PTSD was incorrectly mailed to the veteran on July 11, 1990, to a general delivery address. The veteran's address at the time was reflected in two pieces of correspondence from the veteran received by the VA "Foreign Services Unit" in April 1990 and received by the RO in Washington, D.C., in June 1990. The sequential ordering of documents in the claims file indicates that the new address, a P.O. Box number, was reflected in the claims file at the time of the July 1990 rating decision. On July 31, 1991, the RO received correspondence from the veteran's representative requesting reconsideration of the claim for service connection for PTSD. In January 1992 the veteran submitted a notice of disagreement. In February 1992 the RO issued a statement of the case. In March 1992 a Form 9 was received by the RO. In a June 1994 RO hearing officer's decision, service connection for PTSD was granted. The award was effective July 31, 1991, the date upon which the RO received the representative's request that the claim for service connection for PTSD be reconsidered. During the veteran's July 1999 Board hearing, the veteran testified that he never received the July 1990 letter containing notice of the June 1990 rating decision which denied service connection for PTSD. Analysis Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. A rating decision becomes final if the veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.302 (1999). The Board finds that the date of claim with respect to the July 1990 denial of service connection for PTSD was October 11, 1989, the date on which a VA physician diagnosed PTSD during a VA compensation examination. This VA compensation examination report initiated the RO's adjudication of the claim for service connection for PTSD. Notice of a July 1990 rating decision which denied service connection for PTSD was mailed by the RO on July 11,1990, to the incorrect address. The veteran's address at the time was a P.O. Box number and was reflected in two pieces of correspondence from the veteran received by the VA "Foreign Services Unit" in April 1990 and received by the RO in Washington, D.C., in June 1990. The sequential ordering of documents in the claims file indicates that the new address was documented in the claims file prior to the time of the July 1990 letter containing notice of the June 1990 rating decision. The letter informing the veteran of the RO denial of service connection for PTSD, issued to the wrong address, was mailed on July 11, 1990, while the request for reconsideration of the decision from the veteran's representative was received on July 31, 1991 -- 21 days after one-year period had expired for submission of a notice of disagreement of the RO rating decision. The Board finds that the veteran did not receive notice of the June 1990 rating decision which denied service connection for PTSD. The Board acknowledges that the veteran apparently did receive notice of other correspondence addressed to the old address rather than the new one. However, in light of the veteran's testimony that he never received the July 1990 letter containing notice of the June 1990 rating decision, the Board is not willing to presume that the veteran received the July 1990 letter based solely on the fact that the veteran did receive notice of other correspondence which was improperly addressed. For example, he may have received notice of this correspondence through the Fargo, North Dakota, office of the American Legion (which responded to RO correspondence regarding the veteran's various claims at the time in the July 1991 letter) rather than via mail delivered to his home address. Since the veteran did not receive notice of the June 1990 rating decision, the October 11, 1989, claim remained open at the time of the July 31, 1991 request of the veteran's representative that the claim for service connection for PTSD be reconsidered. Thus, the proper effective date for service connection is the date determined with respect to the June 1990 RO rating decision. This date is October 11, 1989, the date on which a VA physician diagnosed the veteran as having PTSD during a VA compensation examination. Accordingly, an effective date of October 11, 1989, for service connection for PTSD is granted. ORDER An effective date of October 11, 1989, for service connection for PTSD is granted. REMAND Where a dispute arises as to the content of the record and where the documents proffered by the appellant are within the Secretary's control and could reasonably be expected to be a part of the record before the Secretary and the Board, such documents are, in contemplation of law, before the Secretary and the Board and should be included in the record. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). During the veteran's July 1999 Board hearing, he described VA records of treatment at the VA medical centers in Fargo, North Dakota, and Minneapolis, Minnesota, for his cervical spine and low back, which had not been associated with the claims file. The veteran was noted to have terminal cancer and only a number of months left to live. The veteran's representative indicated he would have the additional medical records sent to the Board with a waiver of RO consideration of the new evidence. A waiver was received at the Board hearing; however, the additional medical records have not been received. Accordingly, the Board is compelled to remand the issues of entitlement to service connection for a low back disability and entitlement to service connection for a cervical spine disability to the RO for the purposes of obtaining additional evidence and readjudication of the claims. In light of the veteran's failing health, this process should be expedited to the maximum extent possible. On the basis of the above and pursuant to 38 C.F.R. § 19.9, the Board determines that further development of the evidence is essential for a proper appellate decision and, therefore, remands the matter to the RO for the following action: 1. The RO should obtain all records of treatment for cervical spine and low back disability from the VA medical centers in Minneapolis, Minnesota and Fargo, North Dakota, which have not been previously obtained, and associate them with the claims folder. 2. The RO should conduct any additional development appropriate in light of the evidence received. 3. Thereafter, the RO should readjudicate, in light of the additional evidence, the issues on appeal. If the benefits sought on appeal are denied, then the appellant and his representative should be provided a supplemental statement of the case which reflects RO consideration of all additional evidence, and the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required by the veteran until contacted by the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. RENÉE M. PELLETIER Member, Board of Veterans' Appeals