Citation Nr: 1323208 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 09-38 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a cervical spine disorder. 2. Entitlement to an effective date prior to September 16, 2002, for an award of service connection for depression with posttraumatic stress disorder (PTSD). 3. Entitlement to an effective date prior to September 16, 2002, for an award of a 100 percent schedular evaluation for the Veteran's depression with PTSD. 4. Entitlement to an effective date prior to June 8, 2007, for basic eligibility to Department of Veterans Affairs Dependents' Educational Assistance (DEA) benefits. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1976. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." In February 2012, the issues as listed on the title page of this decision, as well as the claim for entitlement to an earlier effective date (EED) for an award of a total rating for compensation purposes based on individual unemployability (TDIU), were before the Board. The claim for an EED for a TDIU was dismissed. However, it was noted that the issue of entitlement to a TDIU for the period prior to September 16, 2002, was raised by the record. As this issue had not been adjudicated by the RO, it was referred to the RO for appropriate action. Subsequently, in a June 2012 rating decision, entitlement to a date earlier than September 16, 2002, for the grant of a TDIU, was denied, and a statement of the case (SOC) was issued in May 2013 (see the virtual records). A review of the claims file, to include all records associated with Virtual VA does not reflect that the Veteran has submitted a substantive appeal as to this issue. As such, the issue of entitlement to a date earlier than September 16, 2002, for the grant of a TDIU, is not for appellate review. The long and complex procedural history associated with the issues as listed on the title page was provided in great detail in the Board's February 2012 remand decision. It will not be repeated here for expediency of the Veteran's claims and because to do so would be redundant. FINDINGS OF FACT 1. The claim of entitlement to service connection for a cervical spine disorder was denied by the RO in a March 2000 rating decision which was confirmed in a July 2001 rating determination. The Veteran was notified in August 2001 but did not appeal. 2. Evidence received since the July 2001 decision is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for a cervical spine disorder. 3. The Veteran filed an informal claim of entitlement to service connection for a psychiatric disorder on September 16, 2002, which was later granted; the September 16, 2002, date was assigned as the effective date for the award. 4. Prior to receipt of the claim on September 16, 2002, there were no pending requests for service connection for a psychiatric disorder of record. 5. It is not factually ascertainable that the Veteran's depression with PTSD more nearly approximated the criteria for a 100 percent schedular rating prior to September 16, 2002. 6. The Veteran is shown to be permanently and totally disabled due to his depression with PTSD on September 16, 2002; the date on which he was awarded a 100 percent rating for that disability. CONCLUSIONS OF LAW 1. New and material evidence has not been presented to reopen a claim of entitlement to service connection for a cervical spine disorder. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2012). 2. The criteria for an effective date earlier than September 16, 2002, for the grant of service connection for depression with PTSD have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.159, 3.160, 3.400 (2012). 3. The criteria for entitlement to an effective date earlier than September 16, 2002, for the award of a 100 percent schedular rating for depression with PTSD have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.400 4.126, 4.130, Diagnostic Codes (DCs) 9411 and 9434 (2012). 4. The criteria for an effective date of September 16, 2002, for the award of eligibility to DEA benefits pursuant to 38 U.S.C.A. § Chapter 35 have been met. 38 U.S.C.A. §§ 3501, 5113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.807, 21.3020, 21.3021 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a Claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in March 2009, June 2009, April 2010, and April 2012) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claims. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in letters dated in March 2009, June 2009, April 2010, and April 2012. Additionally, as to the issue of whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for a cervical spine disorder, in Kent v. Nicholson, 20 Vet. App. 1, 10 (2006), the Court held that VA must notify a Claimant of the evidence and information that is necessary to reopen the claim and VA must notify the Claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. The VCAA requires, in the context of a claim to reopen, the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial. In the present case, the Veteran has been notified of the evidence and information necessary to reopen the claim and to establish entitlement to the underlying claim for benefit sought in the March 2009, April 2010, and April 2012 VCAA letters mentioned above. Legal Criteria: Claims to Reopen Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002 & Supp. 2012). An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Moreover, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2012). The Board does not have jurisdiction to consider a claim that has been previously adjudicated unless new and material evidence is presented, and before the Board may reopen such a claim, it must find that new and material evidence has been presented. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). See also Winters v. West, 12 Vet. App. 203 (1999). Thus, whether the RO in the current appeal reviewed the claim on a de novo basis or deemed that the evidence submitted was not sufficient to reopen the claim as here, the Board will make its own determination. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). The Court recently interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). See also Evans v. Brown, 9 Vet. App. 273, 284 (1996) (the newly presented evidence need not be probative of all the elements required to award the claim, but only need to be probative in regard to each element that was a specified basis for the last disallowance). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis: Claims to Reopen The RO initially denied service connection for a cervical spine disorder in March 2000. That denial was confirmed by rating decision in July 2001. The Veteran was notified of the denial by an August 2001 letter. He did not appeal the denial or submit any additional pertinent evidence within the appeal period. The basis for the denials in March 2000 and July 2001 was that a cervical disorder was not shown in service or until many years thereafter, not had it been shown to be attributable to his period of active duty. The medical evidence of record in July 2001 consisted of the Veteran's service treatment records (STRs), post service VA records to include vocational rehabilitation records, and private records. It was noted that magnetic resonance imaging (MRI) in August 1993 was interpreted as showing minor disc bulging at the L4-C5 level, but the examiner opined that there were no significant abnormalities. A February 1999 report noted neck complaints. The diagnosis was a herniated cervical disc. VA treatment records showed that the Veteran fell in 2000 injuring his back and neck resulting in a grinding sensation. As there was no competent evidence showing a relationship between pathology first noted in 1999 and his period of military service which terminated many years before, the claim was denied. Evidence received since July 2001 includes additional VA and private treatment records dated through 2011 which show treatment for various conditions to include the cervical spine. Specifically these records show treatment for degenerative changes in both the lumbar and cervical spine. He underwent lumbar spine procedure in 2001 and 2003. (It is noted that the Veteran is service-connected for L5-S1 degenerative disc disease (DDD)). When examined by VA in September 2001, the Veteran described neck pain which began about 10 years prior. When examined by VA in May 2011, the diagnosis was cervical spine DDD. Following review of the claims folder and evaluation of the Veteran, the examiner noted that the Veteran described a particular post service injury to the neck injury after which his complaints began. It was added that the Veteran gave a history of neck surgery shortly after that injury in 1999 and that he had had related problems ever since. He also had a long-standing history of low back issues dating from the 1970s. The VA examiner noted that degenerative changes or disk disease in one area of the spine did not cause the other area of the spine to develop the same condition. Certainly, someone could be genetically predisposed to develop osteoarthritis or DDD but that was very different from one area of the body causing that condition to occur in the other area of the body. The Veteran had a clear injury that started his neck condition. The examiner noted that when she asked him about one being caused by the other, he said that his lumbar and cervical spine problems were intertwined. When his back hurt, it was hard for him to do certain things that might help his neck and if his neck hurt, the reverse was true. For example, he said that he would have like to ride a bike to somehow help his back but he could not do that because of his neck. She stated that nowhere in the evidence did she see any evidence that his cervical spine was in any way caused by his low back or permanently aggravated by his low back. Likewise, this was not the mechanism of how the neck condition came about. In conclusion, the examiner opined that the Veteran's currently claimed cervical spine disorder was not caused by or secondary to or aggravated by the service-connected disability of DDD at L5-S1. Also added to the record were numerous statements by friends and members of the Veteran's family attesting to his psychiatric problems. Specific arguments as to his cervical spine were not provided. On review of the evidence above, the Board finds that the medical evidence received since July 2001 is not material to the claim to reopen the claim for service connection for a cervical spine disorder. Nothing in the medical evidence added to the record relates to the reasons the claim was originally denied: i.e., nothing therein shows or implies that the Veteran's current cervical spine disability is attributable to event, injury, or disease during service, or was caused or worsened by his service-connected lumbar spine disorder. The evidence primarily relates exclusively to current symptoms and the opinion of record does not support that the current cervical spine disability is of service origin or associated with service-connected lumbar spine DDD. The Board has considered the case in light of Shade, 24 Vet App. 110. While Shade asserts that case must be reopened if any previously unproven element of service connection is addressed, in this case the evidence received since July 2001 does not pertain to any element of service connection that was previously missing. Accordingly, the circumstance cited by Shade is not applicable. The Board notes that the Veteran and/or his representative have presented one new etiological theory for the Veteran's claimed cervical spine disorder. Specifically, while the denial in 2001 was based on a finding that there was no direct relationship between a cervical spine disorder and service, the additional argument has since been made that his cervical spine disorder is secondary to a service-connected lumbar spine condition. It is noted that a separate theory in support of a claim for a particular benefit is not equivalent to a separate claim and a final denial on one theory is a final denial on all theories. See Ashford v. Brown, 10 Vet. App. 120 (1997) (reliance upon a new etiological theory is insufficient to transform a claim which has been previously denied into a separate and distinct, or new, claim). As such, new and material evidence is necessary to reopen a claim for the same benefit asserted under a different theory. See Robinson v. Mansfield, 21 Vet. App. 545 (2008); Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004). Thus, a newly presented argument (such as secondary to a service-connected condition) regarding the etiology of the Veteran's cervical spine disorder is therefore insufficient to reopen this claim. Regarding the various statements provided by the Veteran, the Board notes that the Veteran is not shown to possess the appropriate medical expertise and training to competently offer an opinion as to whether he currently has residuals of injuries or diseases he allegedly incurred during service, any statements purporting to do so cannot constitute material evidence. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). For these reasons, unsupported statements, even if new, do not serve as a predicate to reopen a previously disallowed claim under the facts of this case. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). Laypersons are not competent to give a medical opinion as to diagnosis or causation. Therefore, these statements are not new and material evidence, see Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999), and are insufficient to reopen the claim. See Savage, supra; Moray, supra. As none of the additional evidence received since the July 2001 denial establishes that the Veteran was treated for a cervical spine disorder during service, and the absence of such evidence was the basis for the prior denial, and because no association between any current cervical spine condition and service-connected lumbar spine DDD is shown, new and material evidence has not been received. This claim is therefore not reopened and the appeal must be denied. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2012). Legal Criteria: Earlier Effective Dates The provisions of 38 U.S.C.A. § 5110(a) state that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date of an award of disability compensation to a Veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C.A. § 5110(b)(1) (West 2002 & Supp. 2012). The provisions of 38 C.F.R. § 3.400 stipulate that, 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 final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. In the case of direct service connection, the effective date of an award is the day following separation from active service or date entitlement arose if a claim is received within 1 year after separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2) (2012). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a) (2012). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2012). "Date of Receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (2012). The regulations also provide that a veteran may receive benefits by filing an informal claim, which is defined by '[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant...may be considered an informal claim." 38 C.F.R. § 3.155 (2012). Such an informal claim must identify the benefit sought; and, upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id. Entitlement to an effective date prior to September 16, 2002, for an award of service connection for depression with PTSD. Analysis Service connection for depression was initially established upon rating decision in August 2006. Subsequent rating decisions have established that PTSD is part and parcel of the service-connected disorder, and that the onset of the award of service connection for the psychiatric condition is September 16, 2002. It is contended that the service connection award should have an earlier effective date. A review of the claims file reveals that the Veteran submitted a statement on September 16, 2002, which was interpreted as raising the issue of service connection for a psychiatric disorder. While he was essentially submitting a statement about his lumbar spine condition, he did note that he suffered from depression. The record contains no evidence manifesting any intent on the part of the Veteran to file a claim for service connection for a psychiatric disability before that date. While it is true that the Veteran's treatment records show treatment for psychiatric complaints and even for depression as early as 1993, "mere presence" of a diagnosis of a specific disorder in a medical report "does not establish an intent on the part of the veteran" to seek service connection for that disorder. Brannon v. West, 12 Vet. App. 32, 35 (1998); MacPhee v. Nicholson, 459 F.3d at 1326-27 (VA medical examination reports standing alone can constitute informal claim only with regard to claims that previously have been granted service connection); 38 C.F .R. § 3.155 (2012). Accordingly, while the Veteran contends that the effective date should be earlier than September 16, 2002, for his award of service connection, the governing legal authority is clear and specific, and VA is bound by it. As discussed above, the Veteran's September 16, 2002, statement was interpreted as application for VA benefits for a psychiatric disorder as secondary to his service-connected lumbar spine disorder. Further, a review of the claims file reveals that while the Veteran filed applications for VA compensation benefits right after service and in the years thereafter, he did not mention his psychiatric condition until the September 16, 2002 statement. Consequently, the assignment of an effective date earlier than September 16, 2002, the date of receipt of the claim, for the award of service connection for depression with PTSD is not warranted. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012). Entitlement to an effective date prior to September 16, 2002, for an award of a 100 percent schedular evaluation for the Veteran's depression with PTSD. Analysis The Veteran seeks an effective date earlier than September 16, 2002, for the assignment of a 100 percent schedular rating for his service connected depression with PTSD. As noted above, the effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2) (2012). If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2) (West 2002 & Supp. 2012); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2) (2012); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). The medical evidence of record does not support nor is it factually ascertainable that a 100 percent schedular rating for depression with PTSD is warranted prior to September 16, 2002. The record includes state of Utah rehabilitation examination records from 1993 and 1994 wherein the Veteran's depression was noted. In 1994, major depression was diagnosed and his symptoms were described as significant. The Veteran reported a lack of appetite and lack of motivation. The examiner thought that the Veteran should be screened for antidepressant medication. Treatment records from the late 1990s through mid 2002 essentially reflect treatment for conditions other than depression. It is noted, however, that the Veteran again reporting depressive symptoms in or around March 2000 and thereafter. His complaints included anxiety and hopelessness. He was on medication for his psychiatric manifestations. In an August 2002 document by a VA Ph. D., it was noted that the Veteran was currently being treated in the psychological clinic at a VA facility. He was being seen for depressed mood with psychomotor retardation, anhedonia, impaired concentration, and lack of desire to live. She noted that his mental health issues had significantly impaired his ability to function. It appears that this record was added to the claims file on September 16, 2002, the same date as his statement which was interpreted as an informal claim for service connection for a psychiatric condition. Here, the evidence does not establish that his PTSD underwent an increase in severity that became factually ascertainable in the one-year time period prior to the filing of his claim on September 16, 2002. While he was seen for psychiatric complaints in 2000 and thereafter, he did not meet the criteria for a 100 percent rating prior to the doctor's September 16, 2002, statement. Mental disorders are evaluated under the general rating formula for mental disorders, a specific rating formula presented under 38 C.F.R. § 4.130 (2012). When evaluating a mental disorder, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2012). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b) (2012). As provided by the VA Schedule for Rating Disabilities, a 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. The maximum 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. In this case, the evidence simply does not reflect the symptoms to warrant a 100 percent schedular rating for his psychiatric condition until the VA doctor's statement which was added to the record on September 16, 2002, the same date as his statement which has been interpreted as an informal service connection claim. In the year prior, he was seen for psychiatric manifestations are simply not of the severity to warrant a 100 percent rating. Nor does the medical evidence suggest that an increase was factually ascertainable at any time prior to that date; rather, his psychiatric disability appears to have steadily progressed in severity over several years resulting in significant residuals resulting in a 100 percent rating as of September 16, 2002. The U.S. Court of Appeal for the Federal Circuit has recently explained that the provisions of 38 U.S.C.A. § 5110 governing the effective date to be assigned for an increased rating require "that a Veteran's claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of the claim." Gaston v. Shinseki, 605 F.3d 979, 984 (May 20, 2010) (explaining the legislative intent to provide Veterans with a one-year grace period for filing their claims). Thus, when it is established that the increase occurred more than one year prior to the date an increased rating claim is received by VA, the effective date shall be the date that the claim was received, and no earlier. See 38 U.S.C.A. § 5110(b)(2) (West 2002 & Supp. 2012); Gaston, 605 F.3d at 984. Accordingly, as the evidence does not suggest that the Veteran's depression with PTSD underwent an increase in severity in the one year prior to the date his claim was received, the Board finds that a 100 disability rating did not become factually ascertainable during the applicable time period so as to warrant an effective date earlier than the date of his increased-rating claim, September 16, 2002. Finally, in reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012). Entitlement to an effective date prior to June 8, 2007, for basic eligibility to Department of Veterans Affairs DEA benefits. As reported earlier, the Veteran's claims have a long and complex procedural history. Service connection for depression was initially awarded upon rating decision in August 2006. In a June 2007 rating decision, basic eligibility was established for DEA benefits, effective the date of the rating decision (June 8, 2007). Subsequently dated rating determination have ultimately resulted in the assignment of a 100 percent rating for depression with PTSD from the date that the Veteran's claim for entitlement to service connection was deemed to have been filed. That date is the aforementioned date of September 16, 2002. Except as otherwise provided, the effective date of an evaluation and award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. 5110(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (b)(2) (2012). Effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C.A. § 5113 (2012). In this case, the date on which the Veteran had a permanent and total service-connected disability would be the date of his 100 percent rating for his service-connected depression with PTSD; namely September 16, 2002. Thus, the Board assigns basic eligibility for DEA benefits as of that date. Id. ORDER As new and material evidence has not been received, reopening of the claim for service connection for a cervical spine disorder is denied. Entitlement to an effective date prior to September 16, 2002, for an award of service connection for depression with PTSD is denied. Entitlement to an effective date prior to September 16, 2002, for an award of a 100 percent schedular evaluation for the Veteran's depression with PTSD is denied. An effective date of September 16, 2002, for the award of eligibility to DEA benefits under 38 U.S.C.A. § Chapter 35, is granted. ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs