Citation Nr: 0622719 Decision Date: 07/31/06 Archive Date: 08/10/06 DOCKET NO. 04-36 660 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date earlier than August 22, 2000, for the grant of service connection for major depression and generalized anxiety disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nathan Paul Kirschner, Associate Counsel INTRODUCTION The veteran served on active duty from July 1956 to December 1976. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a January 2004 rating decision of the Regional Office (RO) of the Department of Veterans' Affairs (VA) in Montgomery, Alabama, which denied entitlement to an effective date earlier than August 22, 2000, for service connection for major depression and generalized anxiety disorder. In December 2005 the veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge, who is rendering a determination in this claim. FINDINGS OF FACT 1. In an April 27, 1998, decision the RO denied entitlement to service connection for a nervous condition; that determination has become final. 2. In an April 2003 rating decision the RO granted entitlement to service connection for major depression and generalized anxiety; a 100 percent disability rating was assigned effective August 22, 2000. 3. The veteran received psychiatric treatment at a VA facility on September 21, 1999. CONCLUSION OF LAW An effective date of September 21, 1999, is warranted for the award of entitlement to service connection for major depression and generalized anxiety. 38 U.S.C.A. § 5110 (West 2002 & West Supp. 2005); 38 C.F.R. § 3.400 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Earlier Effective Date The veteran asserts that an effective date earlier than August 22, 2000, is warranted for his award of service connection for major depression and generalized anxiety disorder. Under the applicable regulations the Board finds that service connection was warranted as of September 21, 1999. VA regulations provide that the effective date for an award of disability compensation based on an original claim for direct service connection shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, and for reopened claims, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2)(i), (r) (2005). VA regulations also provide that the terms claim and application mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2005). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2005). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought and demonstrate an intent to apply for that identified benefit. If an executed application form is submitted to VA within one year after the date it was sent to the claimant, it will be deemed filed on the date the informal claim was received. See 38 C.F.R. § 3.155(a) (2005). The United States Court of Appeals for Veterans Claims (Court) has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. See Lalonde v. West, 7 Vet. App. 537, 380 (1999). A report of examination or hospitalization that meets the requirements of 38 C.F.R. § 3.157 will be accepted as an informal claim for benefits, if the report relates to a disability that may establish entitlement. Once a formal claim for compensation has been disallowed, receipt of one of the following will be accepted as an informal claim to reopen a previously denied claim: (1) Report of examination or hospitalization by VA or uniformed services. 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, only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. (2) Evidence from a private physician or layman. The date of receipt of such evidence will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157. The RO denied the veteran's claim for service connection for a nervous condition in an April 1998 decision. The RO issued the notice of its decision to the veteran in April 1998; however, he did not file a timely appeal. Therefore, that decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2005). As the veteran has not submitted a motion claiming clear and unmistakable error in the prior RO decision, the RO's April 27, 1998, decision is final as to the evidence then of record and as to any claim for service connection for a nervous condition filed prior to this date. 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400(q)(1)(ii) and (r). The date that the veteran filed an application for compensation benefits prior to this decision cannot serve as the effective date of his recent award of service connection for major depression and generalized anxiety disorder. See Hazan v. Gober, 10 Vet. App. 511, 520 (1997) (holding that for effective date purposes, the application must be the application on the basis of which the rating was awarded); Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997) (holding that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application). Although the veteran may have suffered from a psychiatric disorder prior to receipt of his August 2000 claim, the effective date for service connection based on a reopened claim cannot be the date of receipt of any claim which was previously and finally denied. Lalonde v. West, 12 Vet. App. 377 (1999) (holding that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.") The facts in this case as to events after April 27, 1998, are undisputed. A list of VA treatment records showed that there was a Psychiatry Clinic Note in the file dated September 21, 1999. His diagnosis in a November 1999 VA treatment note was depression in partial remission. On August 22, 2000, the RO received a claim for service connection for a mental disorder. In a March 2002 rating decision the RO denied entitlement to service connection for a mental condition, previously claimed as a nervous condition. A Board decision in January 2003 found that new and material evidence had been submitted to reopen the veteran's claim for service connection for a psychiatric disorder and granted service connection for a psychiatric disorder, namely anxiety and depression. An April 2003 decision by the RO granted service connection for major depression and generalized anxiety with an evaluation of 100 percent effective August 22, 2000. Based upon the evidence of record, the Board finds that the April 27, 1998, RO decision is final and that the veteran's VA Mental Health treatment records from September 21, 1999, constituted an informal claim to reopen his claim for entitlement to service connection for a psychiatric disorder. Therefore, the veteran's claim for entitlement to an earlier effective date is granted, effective September 21, 1999. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) redefined the obligations of VA with respect to the duty to assist, and superseded the decision of the United States Court of Appeals for Veterans Claims (Court) in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order) (holding that VA cannot assist in the development of a claim that is not well grounded). It also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. In this case, in a letter, dated in June 2004, the veteran was notified of the VCAA, and of the respective duties to obtain evidence. As the Board has granted in part the veteran's claim for an earlier effective date and there is no allegation that additional evidence exists, a detailed discussion of the VCAA is unnecessary. Any failure of VA in fulfilling its duties to notify and assist the veteran is essentially harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Entitlement to an effective date of September 21, 1999, for the award of entitlement to service connection for major depression and generalized anxiety disorder is granted. ____________________________________________ MARK GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs