Citation Nr: 18150980 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-13 174 DATE: November 16, 2018 ORDER Entitlement to an effective date prior to September 20, 2011, for the grant of service connection for posttraumatic stress disorder (PTSD) with Major Depressive Disorder, alcohol abuse, and cannabis abuse (hereinafter, an acquired psychiatric disability) is denied. FINDINGS OF FACT 1. In August 2010, the Veteran filed claims to establish service connection for several different disabilities; however, these claims did not include the issue of entitlement to service connection for an acquired psychiatric disability. 2. On September 20, 2011, the RO received a formal claim from the Veteran dated September 13, 2011, to establish service connection for PTSD. 3. A November 2012 rating decision granted service connection for PTSD with Major Depressive Disorder, alcohol abuse, and cannabis abuse, and assigned an effective date of September 20, 2011. 4. No formal or informal claim to establish service connection for an acquired psychiatric disability was received or adjudicated by the RO prior to September 20, 2011. CONCLUSION OF LAW The criteria for an effective date prior to September 20, 2011, for the award of service connection for an acquired psychiatric disability have not been met. 38 U.S.C. §§ 5103A, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.326(a), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had periods of active duty in the United States Army from August 1990 to April 1994, February 2005 to April 2006, July 2006 to January 2008, and August 2008 to September 2009, to include service in Southwest Asia Theater of operations during the Persian Gulf War. He also had additional periods of service of an unspecified nature in the California Army National Guard. This matter comes before the Board of Veterans’ Appeals (the Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. 1. Entitlement to an effective date prior to September 20, 2011, for the grant of service connection for an acquired psychiatric disability 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. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). See the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014) With respect to the appeal for and earlier effective date, resolution of this issue turns on the law as applied to the undisputed facts regarding the date of receipt of claim and date entitlement arose. As the effective date issue decided herein turns on a matter of law, further assistance, such as the further procurement of records or VA examinations, would not assist the Veteran with the appealed issues. Consequently, no further notice or development under the VCAA is warranted with respect to these particular issues. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Earlier Effective Dates The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct 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 separation from service. Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. 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. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). A report of VA examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b)(1) (in effect prior to March 24, 2015). The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree. Analysis The Veteran seeks an effective date earlier than September 20, 2011, for the award of service connection for an acquired psychiatric disability. In his November 2013 Notice of Disagreement, he asserted the effective date of the award for this disability should be October 1, 2009, because his initial claim for disability benefits, received by VA is prior to his September 2009 separation from active duty, included a claim for an acquired psychiatric disability. Following a review of the record, the Board finds that an effective date earlier than September 20, 2011, is not warranted with regard to an acquired psychiatric disability. In August 2009, the Veteran filed claims to establish service connection for several different disabilities; however, these claims did not include the issue of entitlement to service connection for an acquired psychiatric disability. On September 20, 2011, the AOJ received from the Veteran a formal claim to establish service connection for PTSD. In the November 2012 rating decision, the AOJ established service connection for PTSD with Major Depressive Disorder, alcohol abuse, and cannabis abuse; a 70 percent initial evaluation was assigned from September 20, 2011 – the date that the AOJ received the Veteran’s formal claim to establish service connection for PTSD. The Veteran asserts that he experienced psychiatric symptoms during and since service, and this assertion is congruent with the medical evidence showing reports of, and treatment for psychiatric symptoms within the Veteran’s service treatment records and VA treatment records pre-dating his September 2011 claim. Specifically, the evidence shows that the Veteran was initially diagnosed with PTSD on January 26, 2010. These facts are uncontroverted by the AOJ and the Board; however, even if earlier VA examination or hospitalization reports noted such symptoms or diagnosed acquired psychiatric disabilities, these reports could not be construed as informal claims to establish service connection because prior, formal claims for these disabilities had not been disallowed for the reason that the service-connected disability is not compensable in degree. VA did not receive any claim, formal or informal, to establish service connection for any acquired psychiatric disability prior to September 20, 2011. Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). As noted above, the Veteran stated in his November 2013 Notice of Disagreement that his initial claim for VA disability benefits included a claim to establish service connection for an acquired psychiatric disability; however, in a March 2015 statement, he retracted this assertion, noting that his original filing did not include such a claim. The Veteran has not pointed to any communication or document that could serve as an earlier, unadjudicated claim to establish service connection for an acquired psychiatric disability. Having determined that the Veteran's formal claim was filed no earlier than September 20, 2011, the Board must now determine when entitlement to service connection arose. As noted, an effective date is assigned based on the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Thus, even though the Veteran has been experiencing psychiatric symptoms during and since his separation from service in September 2010, September 20, 2011, is clearly the later of two dates specified by law. Hence, on this record, an earlier effective date is not assignable by law. In light of the above, the Board finds that the appropriate effective date for the grant of service connection for an acquired psychiatric disability is September 20, 2011 – the effective date assigned by the AOJ in the November 2012 rating decision. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (c)(3)(ii). As there is no legal basis for the assignment of an earlier effective date, the claim for an earlier effective date for the award of service connection for an acquired psychiatric disability must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel