Citation Nr: 18154553 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 17-56 813 DATE: November 30, 2018 ORDER An effective date earlier than February 14, 2003 for entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. In unappealed December 1999 and April 2000 rating decisions, the RO denied service connection for schizoaffective disorder, bipolar type. 2. In July 2000, the Veteran filed a claim for service connection for a sleep disorder, claiming that his sleep disorder was misdiagnosed as schizoaffective disorder. 3. In a December 3, 2001 rating decision, the RO denied entitlement to service connection for a sleep disorder. The Veteran did not appeal that decision within one year of its issuance and new and material evidence was not received within that year. 4. In February 2003, the Veteran requested to reopen his claim of service connection for a sleep disorder. 5. In a June 2016 decision, the Board reopened the previously denied claim of service connection for a sleep disorder and recharacterized the issue to include a psychiatric disorder. The Board granted service connection for a schizoaffective disorder, bipolar type, to include a psychotic disorder, otherwise claimed as a sleep disorder. 6. In an October 2016 rating decision, the RO effectuated the Board’s grant of service connection for schizoaffective disorder, bipolar type, to include a psychotic disorder, otherwise claimed as a sleep disorder; and, granted a TDIU, both effective February 14, 2003. 7. There is no evidence of any unadjudicated formal or informal claim of service connection for a sleep disorder subsequent to the December 2001 rating decision and prior to February 14, 2003, the effective date of award. CONCLUSIONS OF LAW 1. The December 1999, April 2000, and December 2001 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for an effective date earlier than February 14, 2003, for entitlement to a TDIU are not met. 38 U.S.C.§§ 5110 (a), 7105(d)(3) (2012); 38 C.F.R. §§ 3.104 (2018), 3.155 (in effect prior to March 24, 2015), 3.156, 3.400, 20.302, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from April 1961 to October 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision by the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA) in which the RO, inter alia, granted service connection for schizoaffective disorder, bipolar type, to include a psychotic disorder, otherwise claimed as a sleep disorder and entitlement to a TDIU and assigned an effective date of February 14, 2003 for both claims. The Veteran timely filed a notice of disagreement (NOD) and timely disagreed with the effective date assigned for a TDIU. 1. Entitlement to an earlier effective date for TDIU Generally, except as otherwise provided, the effective date of an award of compensation based on an original claim 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; otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award of disability compensation is set in accordance with the facts found, but cannot be earlier than the date of receipt of the claim for the compensation that was granted. 38 U.S.C. § 5110 (a). If the claim for compensation was received within one year of separation from service, the effective date is the day following separation from service. See 38 U.S.C. § 5110 (b)(1). Otherwise, the effective date for a claim for disability compensation is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i). Although the regulations relating to what constitutes a claim were recently amended, effective March 24, 2015, given that the claim in this case was filed prior to that date, the former regulations are applicable. Under those regulations, a “claim” was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA was considered an informal claim provided it identified, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155 (a). To determine when a claim was received under the relevant regulations prior to their recent amendment, the Board must review all communications that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Any communication or action that demonstrates an intent to apply for an identified benefit may be considered an informal claim. See 38 C.F.R. § 3.155 (a). Here, the Veteran claims that the effective date for the grant of a TDIU should be February 8, 1999, the date of his initial claim for service connection for a sleep/psychiatric disorder. The current effective date for the award of service connection for schizoaffective disorder, bipolar type, to include a psychotic disorder, otherwise claimed as a sleep disorder is February 14, 2003, the date that the Veteran’s application to reopen his previously denied service connection claim for a sleep disorder was received. Historically, in December 1999, April 2000, and December 2001, the RO denied the claim for entitlement to service connection for psychiatric disorder and a sleep disorder, respectively. In May 2000 and December 2001, the Veteran was notified of the RO’s April 2000 and December 2001 decisions. In July 2000, the Veteran filed a claim for service connection for a sleep disorder where he claimed that his sleep disorder was misdiagnosed as a psychiatric disorder. Neither the Veteran nor his representative submitted a notice of disagreement with the April 2000 and December 2001 rating decision or any correspondence pertaining to his claim for a psychiatric disorder and a sleep disorder. The Veteran did not appeal the April 2000 and December 2001 decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the December 1999, April 2000 and December 2001 decisions became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. On February 14, 2003, the Veteran requested to reopen the previously denied claim for entitlement to service connection for a sleep disorder. In May 2003, the RO, again, denied the claim for entitlement for service connection for a sleep disorder. The Veteran appealed this claim and in January 2007, the Board denied the Veteran’s application to reopen a claim for service connection for a sleep disorder. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC). In a September 2007 Court order, CAVC granted a joint motion for remand (JMR) and the case was returned to the Board. In February 2008, the Board reopened the claim for entitlement for service connection for a sleep disorder and remanded the claim for further development. The claim was subsequently remanded again in July 2014 and June 2015. Finally, in a July 2016 Board decision, the Board broadened the scope of the claim to include the Veteran’s psychiatric disability which the Board found to encompass the Veteran’s sleep disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Subsequently, the Board reopened the claim and granted service connection for schizoaffective disorder, bipolar type, to include a psychotic disorder, otherwise claimed as a sleep disorder. As noted, in the October 2016 rating decision, the RO effectuated the Board’s grant of service connection and assigned an effective date of February 14, 2003; and, granted a TDIU, effective the same date as the Veteran’s service-connected psychiatric disability. A claim of entitlement to service connection for a psychiatric/sleep disorder was denied in December 1999, April 2000, and December 2001. The Veteran did not appeal those decisions and they became final. A new claim of service connection for a sleep/psychiatric disorder was not submitted until February 14, 2003, and the disability rating assigned for the sleep psychiatric disorder is the sole basis for the award of a TDIU. Accordingly, there is no basis on which to assign an effective date prior February 14, 2003, for the grant of entitlement to a TDIU, because service connection is not in effect prior to that date. In sum, it has neither been alleged nor has it been shown on review of the record that there is a claim or communication subsequent to the final December 2001 rating decision and prior to February 14, 2003, which may be considered a formal or informal claim for service connection for a sleep disorder. To the extent that there are VA and private treatment records dated during this time period, the mere existence of medical evidence of a disorder does not establish an intent to seek service connection, or entitlement to an earlier effective date. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Rather, a formal or informal claim must be filed in order for any type of benefit to accrue or be paid, and a claim for service connection must indicate an intent to apply for that benefit. See 38 U.S.C. § 5101 (a); 38 C.F.R. §§ 3.151 (a), 3.155(a) (2018); Jones v. West, 136 F.3d. 1296, 1299 (Fed. Cir. 1998). In addition, 38 C.F.R. § 3.157 is not for application with regard to this claim for an earlier effective date for the grant of service connection. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed.Cir.2006) (stating that 38 C.F.R. § 3.157 (b)(1) “makes clear that a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability.”) (Continued on the next page)   The Board acknowledges that the Veteran asserts that the effective date should be February 8, 1999, the date of his initial claim for service connection for a sleep/psychiatric disorder. But, as discussed above, there is no legal basis given the finality of the December 1999, April 2000, and December 2001 rating decisions and neither the Veteran or his representative has provided any evidence or argument to support this contention. For the foregoing reasons, there is no evidence of any unadjudicated formal application to reopen the claim of service connection for a sleep disorder subsequent to the December 2001 rating decision and prior to February 14, 2003, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same. Thus, February 14, 2003, is the earliest possible effective date for the grant of service connection for the Veteran’s psychiatric disability (which encompasses the sleep disorder); thus, for the claim for a TDIU. Therefore, the Board finds that there is no basis upon which to justify granting an effective date earlier than February 14, 2003, and the appeal for an earlier effective date for the award of a TDIU must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laroche, Natalie