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Earlier effective date denial by BVA contained legal error

Earlier effective date denial by BVA contained legal error


The Veteran served on active duty in the U.S. Navy from June 1963 until August 1966.  He filed a claim for entitlement to disability benefits for a “nervous condition” in January 1967.  The VA regional office (RO) denied his claim in April 1967.  That decision became final.  The Veteran asked VA to reopen his claim for entitlement to disability benefits for a “nervous condition” in October 1982.  VA did not respond to his request.  In December 2004, the Veteran filed a claim for entitlement to disability benefits for PTSD.

VA received service department records that were not previously part of the file in September 2005.  The records showed dates of unit assignments, wounds in action, participation in combat operations, etc.  In March 2007, a VA examiner noted the Veteran’s service duties, activities, and fearful experiences.  The examiner  opined that the Veteran had anxiety, depression, and PTSD since returning from Vietnam.

In March 2007, the RO granted his claim and assigned his disorder a 50% disability rating effective February 7, 2006. In the grant the RO listed the 2007 VA examination as evidence it considered.  The Veteran challenged the effective date of his disability benefits in a April 2007 notice of disagreement.  In response, the Board issued five previous decisions addressing the effective date issue.  The Veteran again appealed these decisions.  The Court issued orders deciding each of the first four appeals in the Veteran’s favor after he and the Secretary filed joint motions asking it to do so.

BVA denied an earlier effective date for PTSD

The Board found that the record showed that the Veteran had PTSD-type symptoms.  Furthermore, they determined that the Veteran suffered PTSD during service in Vietnam, and at discharge in 1967.  Despite these findings, the Board denied an earlier effective date for PTSD.  This decision was based on the fact that the date of the Veteran’s reopened claim, October 1, 1982, was later than the date entitlement arose, 1967.  Therefore, service connection for PTSD was granted as of October 1982.

CCK appeals to Court

CCK argued that the Veteran should be entitled to an earlier effective date for service connection for PTSD, effective from his January 1967 claim.  The Board misinterpreted and misapplied the law as under 38 C.F.R. § 3.156(c)(3).  This law states that an award made based “all or in part” on relevant service records that were not associated with the file when VA first decided the claim, is effective either on the date entitlement arose, or the date VA received the previously decided claim.  Here, the Veteran’s date of discharge in August 1966 serves as the date of entitlement.  By that date  PTSD symptoms were shown, and the date of his 1967 claim was later.

Court agrees with CCK’s arguments made for earlier effective date

The Court agreed that “the Board either did not apply that provision at all or so thoroughly misapplied it that it is unrecognizable and impossible for the Court to review.”  Judge Pietsch determined that “[t]here is no dispute that a March 2007 VA medical examination report convinced the RO to grant the appellant’s claim.”  Judge Pietsch explained that if § 3.156(c)(3) applies, the proper effective date for benefits is from January 1967 .  The latter date is when entitlement arose (1966)  and the date VA received his previously decided 1967 claim.  In a footnote, Judge Pietsch explained that the Board’s failure to properly apply the law was “extremely frustrating.”  As the Veteran “included detailed argument about that provision in a submission that he sent to the Board prior to its most recent decision.”, this mistake should not have occurred.

Category: Court Wins

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