Citation Nr: 19156167 Decision Date: 07/19/19 Archive Date: 07/19/19 DOCKET NO. 18-51 321 DATE: July 19, 2019 ORDER Entitlement to an effective date prior to May 17, 2016, for the award of service connection for other specified trauma and stressor related disorder is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for other specified trauma and stressor related disorder is remanded. FINDINGS OF FACT 1. On October 25, 2015, VA received the Veteran’s non-standard narrative submission discussing a psychiatric disorder, which is considered a request for an application for benefits. 2. In November 2015, the RO advised the Veteran as to the information necessary to complete the application form or form prescribed by the Secretary. 3. On May 17, 2016, the Veteran submitted a properly completed VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, seeking service connection for a psychiatric disorder. CONCLUSIONS OF LAW The criteria for an effective date prior to May 17, 2016, for the award of service connection for other specified trauma and stressor related disorder are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1972 to August 1993. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an effective date prior to May 17, 2016, for the award of service connection for other specified trauma and stressor related disorder is denied. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. Id. Moreover, the Court of Appeals for Veterans Claims has determined that the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but on the date that the application upon which service connection was ultimately awarded was filed with VA. See Lalonde v. West, 12 Vet. App. 377, 380 (1999). (“[T]he effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.”) Prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his 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 veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). Effective March 24, 2015, a change in regulation requires claims to be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1 (p), 3.150, 3.155, 3.160(a). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). Non-standard narrative communications/submissions - previously construed as informal claims - will be considered a request for an application for benefits. Standard Claims and Appeals Forms, 79 Fed. Reg. 57660, 57661 (Sept. 25, 2014) (where a claimant submits an informal claim, VA will deem it a request for an application for benefits). The regulation also allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155(b). There are three ways in which a claimant may submit an intent to file a claim: (i) saved electronic application - when an application otherwise meeting the requirements of paragraph (b) is electronically initiated and saved in a claims-submission tool with a VA web-based electronic claims application system, (ii) written intent, signed and dated on the intent to file a claim form prescribed by the Secretary, and (iii) oral intent communicated to designated VA personnel, recorded in writing, and documented in the claimant’s records. Id. A review of the record reflects that the Veteran first filed what would have been considered under the old regulations as an informal claim for service connection for a psychiatric disorder on October 25, 2015. See October 2015 VA Form 21-4138. However, as such statement was filed after March 24, 2015, it is considered a request for an application for benefits. In November 2015, the RO advised the Veteran that all claims must be submitted on a standardized form, and notified the Veteran of the information necessary to file a claim. Subsequently, on May 17, 2016, the Veteran submitted a properly completed VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, seeking service connection for a psychiatric disorder. A December 2015 rating decision awarded service connection for other specified trauma and stressor related disorder and assigned an effective date of May 17, 2016, noting that was the date his claim of entitlement to service connection was received. Here, the RO assigned the correct effective date of May 17, 2016 for the award of service connection. Specifically, the new regulation dictates that non-standard narrative communications/submissions - previously construed as informal claims - will be considered a request for an application for benefits. Such is the case with the Veteran’s October 2015 correspondence. Moreover, the Veteran does not assert, and the evidence does not otherwise reflect, that he filed an intent to file a claim for service connection for a psychiatric disorder in the year prior to May 17, 2016, nor does he allege that he filed an informal claim prior to March 24, 2015. To the extent he sought treatment for a psychiatric disorder prior to that date, such treatment records cannot constitute an original claim for service connection. 38 C.F.R. § 3.157(b)(1) (as in effect prior to March 24, 2015) (a report of VA examination or hospitalization can be accepted as an informal claim to reopen a previously denied claim or for an increased rating). Thus, although symptoms of a psychiatric disorder may have been present prior to May 17, 2016, that cannot serve as a basis for award of an earlier effective date and the date of the filing of his claim controls. Accordingly, entitlement to an earlier effective date is denied. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 10 percent for other specified trauma and stressor related disorder is remanded. In October 2016, a VA examiner found evidence of malingering and indicated that the Veteran’s clinical interview and screening results were “highly suspect.” Given that malingering is not supported elsewhere in the record, a new VA examination is warranted on remand, and updated records should be secured. The matter is REMANDED for the following action: 1. Obtain all outstanding VA and private treatment records. 2. Then schedule the Veteran for a VA examination with an examiner other than the October 2015 examiner to assess the current nature and severity of his psychiatric disorder. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.