Citation Nr: 18157793 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 16-57 873 DATE: December 13, 2018 ORDER An effective date earlier than February 1, 2013 for the grant of service connection for an acquired psychiatric disorder with posttraumatic stress disorder (PTSD), anxiety, and depression is denied. VETERAN’S CONTENTIONS The Veteran contends, via his representative, that he is entitled to an earlier effective date than currently assigned for his service-connected acquired psychiatric disorder with PTSD, anxiety, and depression. Specifically, the Veteran contends that he is entitled to an earlier effective date of August 17, 2010, the date he originally submitted his application to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder. FINDINGS OF FACT 1. The Veteran’s claim for service connection for an acquired psychiatric disorder with PTSD, anxiety, and depression was originally denied in a June 2000 rating decision. The Veteran did not complete an appeal with regard to this decision, nor has he filed a claim for revision of the June 2000 denial of service connection based upon CUE; thus, the decision is final. 2. The Veteran’s application to reopen his claim for service connection for an acquired psychiatric disorder with PTSD, anxiety, and depression was denied in an August 2011 rating decision. The Veteran submitted a timely notice of disagreement (NOD) in February 2012 and the RO issued a statement of the case (SOC) in August 2012, but the Veteran did not perfect his appeal within the relevant appeal period following the issuance of the SOC, nor has he filed a claim for revision of the August 2011 denial of service connection based upon CUE; thus, the decision is final. 3. The Veteran’s application to reopen his claim for service connection for an acquired psychiatric disorder with PTSD, anxiety, and depression was denied in a January 2014 rating decision. The Veteran submitted a timely NOD in April 2014. 4. In March 2015, the RO granted service connection for an acquired psychiatric disorder with PTSD, anxiety, and depression; and assigned an effective date of February 1, 2013, the date the application to reopen the previously denied claim was received. CONCLUSION OF LAW The criteria for an effective date earlier than February 1, 2013, for the grant of service connection for an acquired psychiatric disorder with PTSD, anxiety, and depression are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1980 to March 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Entitlement to an effective date earlier than February 1, 2013 for the grant of service connection for an acquired psychiatric disorder with posttraumatic stress disorder (PTSD), anxiety, and depression Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (2017). The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. Additionally, 38 U.S.C. § 5101 (a) provides that "[a] specific claim in the form prescribed by the Secretary . . . must be filed in order for benefits to be paid or furnished to any individual." The Board acknowledges that effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 38 C.F.R. § 20.201; 79 Fed. Reg. 57660, 57696 (Sept. 25, 2014) (eff. Mar. 24, 2015). As the Veteran's claim at issue was submitted prior to the effective date of the amendment, the prior law and regulations governing claims will be applied in this case. For VA compensation purposes, a "claim" is defined as "a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary." 38 C.F.R. § 3.1(p) (2017). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2017). It must "identify the benefit sought." Id. Thus, 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). VA must look to all communications from a claimant that may be interpreted as an applications or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Notably, an application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. 38 C.F.R. § 3.400 (q); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."). "The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Sears v. Principi, 16 Vet. App. 244, 248 (2002). Except as otherwise provided, the effective date of an award of compensation based on a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application thereof. 38 U.S.C. § 5110 (a). For the Veteran to be awarded an effective date based on an earlier claim that became final and binding, he has to collaterally attack the prior decision and show there was clear and unmistakable error (CUE) in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Here, the Veteran contends, via his representative, that he is entitled to an earlier effective date than currently assigned for his service-connected acquired psychiatric disorder with PTSD, anxiety, and depression. Specifically, the Veteran contends that he is entitled to an earlier effective date of August 17, 2010, the date he originally submitted his claim to reopen. Review of the claims file reveals that the Veteran was originally denied service connection for a psychiatric condition (claimed as PTSD, polysubstance abuse, depressive disorder with psychotic features) in a June 2000 rating decision. The Veteran was notified of this decision and his appellate rights by letter dated June 13, 2000. Service connection for a psychiatric condition (claimed as PTSD, polysubstance abuse, depressive disorder with psychotic features) was again denied in an August 2000 rating decision after the Veteran submitted additional evidence. The Veteran was notified of this decision and his appellate rights by letter dated August 24, 2000. He did not appeal, and no new and material evidence, including new claims, was received within one year of the decision. Therefore, the August 2000 decision is final. 38 U.S.C. § 7105 (b)(2)(c); 38 C.F.R. §§ 3.156 (b), 3.160(d), 20.201, 20.302(a) (2017). The Veteran’s claim to reopen his claim for service connection for PTSD, anxiety, and depression (previously claimed as a psychiatric condition) was denied in an August 2011 rating decision. The Veteran was notified of this decision and his appellate rights by letter dated August 17, 2011, and the Veteran filed a timely notice of disagreement (NOD) in February 2012. Subsequently, the RO issued a statement of the case (SOC) in August 2012, again denying the Veteran’s claims. The Veteran was notified of the decision and his appellate rights by letter dated August 8, 2012, but did not submit a VA Form 9, or other correspondence containing necessary information for an appeal within the expiration of the year following the August 2011 rating decision, or within 60 days of the SOC. Therefore, the August 2012 decision is final. The Veteran submitted an additional claim to reopen his claim for service connection for an acquired psychiatric disorder with PTSD, anxiety, and depression that was received on February 1, 2013. The Veteran’s claim to reopen was denied in a January 2014 rating decision. The Veteran was notified of this decision and his appellate rights by letter dated January 27, 2014, and the Veteran filed a timely NOD in April 2014. In a March 2015 rating decision, the RO granted service connection for an acquired psychiatric disorder with PTSD, anxiety, and depression with an effective date of February 1, 2013, which is the day VA received the Veteran’s claim to reopen. In sum, the August 2000 and August 2012 decisions became final and the Veteran next communicated his desire to file a claim to reopen on February 1, 2013. To reiterate the previously stated law, the effective date of an award of compensation based on a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application thereof. The earliest possible effective date for the Veteran’s claim to reopen is therefore February 1, 2013, the date VA received his application to reopen. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim for an effective date earlier than February 1, 2013 for the grant of service connection for an acquired psychiatric disorder with PTSD, anxiety, and depression. Thus, the appeal is denied. There is no doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 49. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel