Citation Nr: 18145995 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-59 713 DATE: October 30, 2018 ORDER The claim of entitlement to an effective date earlier than July 8, 2014, for the assignment of a 70 percent evaluation for unspecified anxiety disorder is denied. FINDING OF FACT Prior to July 8, 2014, it was not factually ascertainable that the Veteran’s unspecified anxiety disorder had increased in severity to warrant a 70 percent rating. CONCLUSION OF LAW The criteria for an effective date earlier than July 8, 2014, for the assignment of a 70 percent evaluation for unspecified anxiety disorder have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1999 to December 2011. Entitlement to an effective date earlier than July 8, 2014, for the assignment of a 70 percent evaluation for unspecified anxiety disorder. Laws and Regulations - Earlier Effective Dates – In General 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. 38 U.S.C. § 5110(a) (2012). Generally, the effective date of an award of an increased evaluation is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1) (2018). For disability compensation, the effective date of an award shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date, otherwise, the date of receipt of claim. 38 C.F.R. § 3.400(o)(2) (2018). Background and Analysis As a preliminary matter, the Board notes that the Veteran’s primary contention is that the effective date for the 70 percent rating assigned effective July 8, 2014, should be retroactive to the date following his discharge from service. That date is December 31, 2011. See, e.g., his July 2015 notice of disagreement (NOD) and/or his substantive appeal from November 2016. He points out that he filed his initial claim for service connection for anxiety within one year of his discharge. Review of the record reflects that his initial claim for compensation benefits was received on May 7, 2012. Historically, in a July 16, 2013, rating decision, service connection for anxiety was granted, and a 50 percent rating was assigned, effective December 31, 2011. As already noted, this date follows his release from active duty on December 30, 2011. On July 10, 2014, the Veteran filed for an increased rating for his service-connected anxiety, and on a December 2, 2014, rating decision, the 50 percent rating was increased to 70 percent, effective July 8, 2014. This was the date of a Vet Center treatment summary which reflects an increase in anxiety symptoms. Subsequently, in July 2015, the Veteran filed a notice of disagreement (NOD) with the effective date assigned for the increase of the disability rating to 70 percent. A statement of the case (SOC) was issued in October 2016, followed by a November 2016 substantive appeal. As previously stated, the effective date of a rating is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date, and otherwise the date of receipt of the claim. In this case, it is argued that the 70 percent rating should be effective from December 31, 2011, the date following discharge. As such, VA must consider whether there is any medical evidence from the date of the initial claim, making it factually ascertainable that the Veteran’s anxiety was 70 percent disabling. 38 U.S.C. § 5110(b)(2) (2012); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2) (2018); VAOPGCPREC 12-98 (1998). However, a review of post-service treatment records dated from service discharge in late 2011, to include VA examination in November 2012 and subsequently dated VA treatment records in 2013, do not reflect symptoms warranting the assignment of a 70 percent rating. Specifically, prior to private report dated July 8, 2014, the Veteran reported depressed mood, anxiety, and panic attacks that occurred weekly or less often. There was chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective relationships, and impaired impulse control. In a July 8, 2014, treatment summary by a Vet Center therapist/counselor, it was noted that the Veteran had been seen since March 2012 with mental health complaints. In the past year, the Veteran reported a worsening of mental health symptoms due to life changing events and increased health concerns. He was “let go” from his job at the post office due to conflicts with other employees. His increased mental health symptoms included weight gain, insomnia, conflict in personal relationships, and feelings of hopelessness. There was increased anxiety. The increase in anxiety symptoms was corroborated by VA examination in November 2014. Following review of the pertinent documents, there is no evidence, that a date at any time following service discharge on December 30, 2011, prior to the Vet Center treatment summary of July 8, 2014, that it was factually ascertainable that the Veteran’s anxiety symptoms warranted a rating of 70 percent. Thus, the evidence of record does not provide a basis for an effective date earlier than July 8, 2014, for the 70 percent evaluation. With regard to the Veteran’s request for an effective date of December 31, 2011, the effective date of his connection, for assignment of a 70 percent evaluation for anxiety, there is no legal basis for assigning an effective date from the date VA received his claim for service connection. The pertinent legal authority governing effective dates is clear and specific in this regard and the Board is bound by such authority. In summary, under the facts of this case, there is no legal entitlement to an effective date earlier than July 8, 2014, for the assignment of a 70 percent (CONTINUED ON NEXT PAGE) disability evaluation for unspecified anxiety disorder. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to an absence of legal entitlement). BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Hal Smith