Citation Nr: 1802256	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  14-20 636	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an effective date prior to September 7, 2010, for the grant of service connection for schizoaffective disorder (claimed as anxiety/depression).


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. N. Quarles, Associate Counsel

INTRODUCTION

The Veteran had active military service from June 1988 to June 1989.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  

The Veteran testified before the undersigned Veterans Law Judge at a May 2017 videoconference hearing before the Board.  A copy of the hearing transcript has been associated with the claims folder.


FINDING OF FACT

Prior to the September 7, 2010 claim, there were no pending claims or appeals for entitlement to service connection for schizoaffective disorder (claimed as anxiety/depression) that remained unadjudicated.


CONCLUSION OF LAW

The criteria for an effective date prior to March 7, 2012 for service connection for schizoaffective disorder (claimed as anxiety/depression) have not been met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.104, 3.155, 3.156, 3.400 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. VCAA Notice

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).  The Board notes that, during his May 2017 hearing, the Veteran waived agency of original jurisdiction review of new evidence.

II. Applicable Laws and Regulations

Generally, the effective date for an award based on an original claim or a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.  38 U.S.C. § 5110(a).  If, however, a claim for service connection is received within a year following separation from service, the effective date will be the day following separation; otherwise, the effective date is the date of the claim.  38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400(b)(2)(i).  When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopen) claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period.  38 C.F.R. § 3.400(q). 

III. Analysis

The Veteran filed a claim for service connection for an acquired psychiatric disorder, claimed as depression, anxiety, and PTSD in August 1995.  In a February 1996 rating decision, the RO denied the Veteran's claim.  The Veteran did not submit new evidence or any documents the Board may liberally construe as a Notice of Disagreement (NOD) within one year of the notification of the rating decision; therefore the denial by the RO became final.  38 C.F.R. §§ 20.200, 20.201, 20.302.  In February 2008, the Veteran submitted documentation to reopen his claim for an acquired psychiatric disorder, claimed as anxiety.  In a July 2008 rating decision, the RO denied the Veteran's claim for the RO determined the Veteran failed to submit new and material evidence necessary to reopen a final RO decision.  The Veteran did not submit new evidence or any documents the Board may liberally construe as a NOD within one year of the notification of the RO's denial; therefore the denial by the RO became final.  Id.  On September 7, 2010, the Veteran submitted documentation to reopen his claim for an acquired psychiatric disorder, claimed as anxiety and depression.  In a December 2010 rating decision, the RO granted the Veteran's claim to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, and the RO granted service connection.

Accordingly, the Board finds that an earlier effective date cannot be assigned.  The rating decisions from February 1996 and July 2008 for service connection for an acquired psychiatric disorder became final because the Veteran did not perfect an appeal within a year of the RO's decisions.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.103(f), 3.156(b)-(c), 20.200, 20.201, 20.300, 20.302, 20.1103.  The Veteran did not attempt to reopen the finalized February 1996 decision until February 2008; and the Veteran did not attempt to reopen the finalized July 2008 decision until September 2010.  Due to the finality of the previous RO decisions, the earliest effective date statutorily available to the Veteran is the date of the Veteran's most recent service connection claim for an acquired psychiatric disorder.  

In conclusion, there is no basis to assign an effective date earlier than the Veteran's most recent petition to reopen the claim, which is the current effective date on September 7, 2010.  The Veteran's representative contends that reasonable doubt should be resolved in his favor.  However, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.









ORDER

Entitlement to an effective date prior to September 7, 2010, for the grant of service connection for schizoaffective disorder (claimed as anxiety/depression) is denied.



____________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs