Citation Nr: 1525039 Decision Date: 06/11/15 Archive Date: 06/19/15 DOCKET NO. 14-01 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an effective date prior to May 16, 2011 for the award of service connection for dysthymic disorder with generalized anxiety disorder associated with residuals of injury to temporomandibular joint (TMJ). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Slovick, Counsel INTRODUCTION The Veteran had active service from August 1978 to August 1982, and subsequent service with the Massachusetts Air National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. FINDINGS OF FACT 1. Prior to the promulgation of a September 2004 Board decision, the Veteran withdrew his appeal for a psychiatric disorder in January 2001, which he confirmed in March 2004. 2. A letter received by the RO on May 16, 2011 is the first evidence of the Veteran's intent to file a claim for a psychiatric disorder after the withdrawal. CONCLUSION OF LAW The criteria for an effective date prior to May 16, 2011 for the grant of service connection for dysthymic disorder with generalized anxiety disorder have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.155, 3.400, 20.204 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159(b) (2014). With regard to the Veteran's earlier effective date claim, the application of the law to the undisputed facts is dispositive of this appeal. Therefore, additional notification and assistance is unnecessary. See Mason v. Principi, 16 Vet. App. 129 (2002). In any case, the Veteran was apprised of the general criteria for assigning effective dates in a standard May 2011 notice letter, and all potentially relevant records have been obtained as this claim turns on when a claim was filed and if a prior appeal was withdrawn. Analysis The Veteran seeks an earlier effective date for the grant of service connection for dysthymic disorder with generalized anxiety disorder. By way of background, the Veteran initially sought service connection for a psychiatric disorder in a February 1996 claim. The RO denied this claim (characterized generally as an acquired psychiatric disorder) in a June 1998 rating decision and notified the Veteran in that same month of that denial and the opportunity to submit a notice of disagreement to begin an appeal. The Veteran filed a timely notice of disagreement and, following the receipt of a statement of the case, timely submitted an appeal, all of which was accomplished by April 1999. Thereafter, in a January 2001 statement, the Veteran stated that he was willing to withdraw the issue of service connection for a psychiatric disability if service connection for a cervical disability was granted. As service connection for a cervical spine disability had not yet been granted, a supplemental statement of the case pertaining to the psychiatric disorder claim was issued in February 2004. A March 2004 report of contact demonstrates that the Veteran was contacted in order to confirm the January 2001 withdrawal statement following the award of service connection for a neck strain condition in March 2004. The Veteran confirmed that he was satisfied with the prior increase for his TMJ and had no evidence to support his service connection claim for a psychiatric disorder and that he did wish to continue his appeal for a low back condition. In its September 2004 decision, the Board considered service connection for a low back disability on its merits. In the introduction to the decision, the Board explained the history of the psychiatric disorder claim as described above and reiterated that the Veteran had withdrawn his appeal of a claim for service connection for a psychiatric disorder and that he had reconfirmed his withdrawal in March 2004. Several years passed with correspondence pertaining only to issues unrelated to a psychiatric disorder claim. Then, in a correspondence from the Veteran's representative received on May 16, 2011, it was stated that the Veteran wished to submit a claim for service connection for a psychiatric disorder (characterized as anxiety disorder, depression and stress). In May 2012, the RO granted service connection for dysthymic disorder with generalized anxiety disorder as secondary to service-connected TMJ disorder effective May 16, 2011, the date of the Veteran's claim for service connection. The Veteran asserts that his service connection for dysthymic disorder should be effective from March 2004. The Veteran reported in a November 2013 informal conference with a decision review officer that he withdrew his appeal on the advice of his representative who told him to focus on other claims. He stated that his psychiatric condition was secondary to other service-connected disabilities and that therefore an earlier effective date was warranted. He stated that he had had psychiatric symptoms for many years and believed that he did try to reopen his claim between 2004 and 2011. When asked about his March 2004 statement, he could not explain why he told a VA employee that he had no evidence to support his psychiatric treatment. In a January 2014 statement accompanying his substantive appeal, the Veteran noted that his decision to withdraw his appeal in January 2001 was based on a lack of evidence of medical records. He further stated that his TMJ disorder was service connected in September 2004 and that service connection for a psychiatric disorder related to TMJ should be backdated to March 31, 2004, the date of his withdrawal of his appeal. The Veteran further asserted in a May 2014 brief from his representative that he only withdrew his claim because "service connection for TMJ had not been established [and that] the September 2004 grant of benefits for TMJ effectively changed the landscape of his claim, and requires reconsideration." In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2). The effective date of a reopened claim is the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r). For VA compensation purposes, a "claim" is defined as "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). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The Veteran's contentions make it clear that he believes that his claim for service connection should be dated back to March 2004 secondary to the fact that in withdrawing his claim for service connection for a psychiatric disorder he was acting on the advice of his representative. The Veteran and his representative further indicate that the effective date should be earlier because the Veteran's decision to withdraw his claim was based upon the fact that the Veteran had not yet received service connection for TMJ. The record demonstrates that service connection for TMJ was granted in September 1983, rendering this point moot. The Veteran's withdrawal met the criteria for a withdrawal of an appeal under 38 C.F.R. § 20.204 (either the current version or the one prior to March 19, 2003). The withdrawal was in writing and by the Veteran. Although it was not effective in January 2001 because it was conditional, the condition was met and the RO confirmed as much. Further, while the Veteran may regret his decision to withdraw his appeal for a psychiatric disorder in hindsight, the evidence clearly shows that he made a conscious decision to do so, and was fully informed of the consequences of that decision. In any case, the September 2004 Board decision already made this determination that the withdrawal was made and that decision is final. See 38 C.F.R. § 20.1100 (2014); see also Morris v. Principi, 239 F.3d 1292, 1296 (Fed. Cir. 2001) (refusing to require the Board to explain its reasoning in the section of its opinion entitled "Reasons and Bases" rather than in the "Introduction"). The effect of the withdrawal was to make the June 1998 RO rating decision final as the appeal of the decision was no longer in effect. Because the June 1998 RO decision is final, the claim by which the Veteran was granted service connection for dysthymic disorder with generalized anxiety disorder, and which led to this appeal, was a claim to reopen a previously denied claim. It has been held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995)). There is no claim of service connection for a psychiatric disorder, either express or reasonably raised, after the withdrawal and prior to May 16, 2011, which is already the assigned effective date. Thus, the preponderance of the evidence is against the claim for an earlier effective date; there is no doubt to be resolved; and an earlier effective date for the award of service connection for a dysthymic disorder with generalized anxiety disorder is not warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER An effective date prior to May 16, 2011 for the award of service connection for dysthymic disorder with generalized anxiety disorder associated with residuals of injury to TMJ is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs