Citation Nr: 18145386 Decision Date: 10/29/18 Archive Date: 10/26/18 DOCKET NO. 16-24 771A DATE: October 29, 2018 ORDER Entitlement to an effective date of January 18, 2013, but no earlier, for the award of service connection for schizoaffective disorder is granted. FINDING OF FACT The Veteran filed an informal claim of entitlement to service connection for schizoaffective disorder, which was received on January 18, 2013. CONCLUSION OF LAW The criteria for an effective date of January 18, 2013, but no earlier, for the award of service connection for schizoaffective disorder have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.155 (2014); 38 C.F.R. §§ 3.1 (p), 3.102, 3.151, 3.159, 3.314, 3.400, 3.816 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to February 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which granted service connection for schizoaffective disorder and assigned an initial 100 percent evaluation from August 6, 2014. The Veteran was scheduled to appear at the Los Angeles RO in April 2018 to have a personal hearing with a decision review officer (DRO). However, he failed to appear and has not since asked for it to be rescheduled; accordingly, the hearing request is deemed withdrawn. 1. Entitlement to an effective date prior to August 6, 2014 for the award of service connection for schizoaffective disorder. In this matter, the Veteran contends that he is entitled to an effective date prior to August 6, 2014 for the award of service connection for schizoaffective disorder. Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Prior to March 24, 2015, VA recognized formal and informal claims. (Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; claims are now required to be submitted on a specific claim form, prescribed by the Secretary, and available online or at the local RO.) A claim is 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). A formal claim is the use of the appropriate designated VA form to seek specific benefits. 38 C.F.R. § 3.151(a). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”); see also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). 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); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009). A finally adjudicated claim is defined as “an application, formal or informal, which has been allowed or disallowed by an agency of original jurisdiction.” 38 C.F.R. § 3.160(d). Such an action becomes “final” by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest. Id. The pending claims doctrine provides that a claim remains pending in the adjudication process - even for years - if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). The U.S. Court of Appeals for Veterans Claims has confirmed that raising a pending claim theory in connection with a challenge to the effective date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) (recent Federal Circuit cases have not overruled the pending claim doctrine articulated in Norris); Myers v. Principi, 16 Vet. App. 228, 236 (2002) (since VA failed to issue a statement of the case (SOC) after a valid NOD was filed, the original claim was still pending and is relevant to determining the effective date of a service connection award); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability). Upon receipt of an informal claim for which a formal claim has not already been filed, an application for VA benefits (VA Form 21-526EZ) must be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, that signed application will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413 (1999). Here, the Veteran specifically contends that an effective date of January 18, 2013 is warranted as that is the date his informal claim of entitlement to service connection for schizoaffective disorder was received. See, e.g., the Veteran’s notice of disagreement (NOD) dated March 2016 and the written argument of the Veteran’s attorney dated July 2016. For the reasons set forth below, the Board finds that an effective date of January 18, 2013 is appropriate in this matter. The Veteran filed an informal claim of entitlement to service connection for a mental health condition, which was received by the RO on January 18, 2013. In this document, he identified a contention of entitlement to service connection for schizoaffective disorder and then stated, “I am submitting this informal claim in order to preserve the earliest possible effective for any benefits to which I may be entitled.” In August 2014, the Veteran submitted a fully developed claim (VA Form 21-526EZ) in which he asserted entitlement to service connection for schizoaffective disorder. This claim was granted in an August 2015 rating decision and a 100 percent disability rating was assigned from August 6, 2014, the date of receipt of the fully developed claim. As noted above, pursuant to 38 C.F.R. § 3.155(a), an informal claim must be followed up with the formal VA Form 21-526 within one year of the informal claim to “preserve” the “date of claim” otherwise the date of claim becomes the date of receipt of the formal claim. Upon receipt of an informal claim for which a formal claim has not already been filed, an application for VA benefits (VA Form 21-526) must be forwarded to the claimant for execution. In this case, it does not appear that an application for VA benefits was forwarded to the Veteran. If VA does not send a formal claim, then the one-year period cannot begin to run and accordingly, the proper effective date is the date of the informal claim. Jernigan v. Shinseki, 25 Vet. App. 220 (2012); Quarles v. Derwinski, 3 Vet. App. 129, 137 (1992). As VA failed to act on the Veteran’s informal service connection claim, it has remained pending since January 18, 2013, the date the claim was received by the RO. See Norris, 12 Vet. App. at 422. Significantly, there is no document in the evidence of record prior to January 18, 2013 from which the Board may infer that the Veteran sought to file a claim for service connection for schizoaffective disorder, nor does the Veteran so contend. See 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed.Cir.2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1354 (Fed.Cir.1999) (noting that even an informal claim must be in writing).   With reasonable doubt resolved in the Veteran’s favor, the Board finds the submission of the claim for service connection for schizoaffective disorder, received on January 18, 2013, constituted an informal claim pursuant to the provisions of 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). Since the Veteran was not provided a formal VA Form 21-526EZ within one year of the informal claim to “preserve” the “date of claim,” the proper effective date is the date of the informal claim. As such, an earlier effective date of January 18, 2013, but no earlier, is warranted for the grant of service connection for schizoaffective disorder. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel