Citation Nr: A20008917 Decision Date: 05/19/20 Archive Date: 05/19/20 DOCKET NO. 191106-42228 DATE: May 19, 2020 ORDER Entitlement to an effective date earlier than April 1, 2019, for the grant of service connection for a right foot scar is denied. Entitlement to an effective date earlier than April 1, 2019, for the grant of a 70 percent rating for posttraumatic stress disorder (PTSD) (previously rated as depressive disorder (NOS) and generalized anxiety disorder), is denied. Entitlement to an effective date earlier than April 1, 2019, for the grant of a 10 percent rating for a right index finger strain is denied. FINDINGS OF FACT 1. In a February 2013 rating decision, the Veteran was granted entitlement to service connection for depressive disorder NOS and generalized anxiety disorder and a right index finger strain. 2. While the Veteran expressed his disagreement with the ratings assigned for depressive disorder NOS and generalized anxiety disorder and a right index finger strain, he did not perfect an appeal of those issues following the issuance of a June 2014 statement of the case (SOC) and the February 2013 rating decision became final. 3. The Veteran filed an intent to file a claim that was received by VA on April 1, 2019, that was followed by a new claim for benefits that was received by VA on April 2, 2019. 4. Prior to April 1, 2019, there was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for a right foot scar, or for increased ratings for a psychiatric disability or right finger index strain. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 1, 2019, for the grant of service connection for a right foot scar have not been met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.155, 3.400 (2019). 2. The criteria for an effective date earlier than April 1, 2019, for the grant of a 70 percent rating for PTSD (previously rated as depressive disorder NOS and generalized anxiety disorder) have not been met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.155, 3.400 (2019). 3. The criteria for an effective date earlier than April 1, 2019, for the grant of a 10 percent rating for a right finger index strain have not been met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.155, 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), created a new framework of appellate review for veterans dissatisfied with the decision made on their claim. The rating decision on appeal was issued after February 19, 2019, the effective date of the AMA. As such, this decision has been written consistent with the new AMA framework. The Veteran had active naval service from February 1987 to July 2011. This case comes before the Board of Veteran’s Appeals (Board) on appeal from a July 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran timely appealed to the Board by submitting a VA Form 10182 requesting a direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). As a general rule, the effective date of service connection in an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later. If such claim is received within the first year following discharge, an effective date of the day following separation may be assigned. 38 C.F.R. § 3.400 (2019). For increased rating claims, an earlier effective date may be assigned when it is factually ascertainable that an increase in disability occurred and the claim for increase was received within one year from that date, but otherwise the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2) (2019). The Veteran asserts that an effective date earlier than April 1, 2019, is warranted because his claimed disabilities existed during his initial VA medical screening in August 2011. In January 2012, the Veteran submitted a claim for entitlement to service connection for various disabilities, to include mental condition (to include anxiety and depression) and a finger/hand condition. At that time, the Veteran also claimed entitlement to service connection a bi-lateral foot condition (bunionectomy, corns, wart). Based on that claim, in a February 2013 rating decision, the Veteran was granted service connection for depressive disorder NOS and generalized anxiety disorder, right foot hallux valgus, right foot plantar warts, and a right index finger strain. Subsequently, the Veteran expressed disagreement with, in pertinent part, the ratings assigned for his psychiatric disability, his right foot plantar warts, and his right index finger strain. In June 2014, the Veteran was issued a statement of the case (SOC) continuing the ratings assigned in the February 2013 rating decision. The Veteran did not perfect an appeal of any issue addressed in the June 2014 SOC, and so, the February 2013 rating decision became final. In April 2019, the Veteran submitted a claim for entitlement to, in pertinent part, service connection for numbness of the right foot secondary to plantar warts and PTSD; and of entitlement to increased ratings for depressive disorder and generalized anxiety disorder, and right index finger strain. In a July 2019 rating decision, the Veteran was granted entitlement to service connection for a right foot scar, an increased rating of 70 percent for PTSD (previously rated as depressive disorder NOS and generalized anxiety disorder), and an increased rating of 10 percent for his right index finger strain. The effective date assigned for those issues was April 1, 2019, the date the VA received the Veteran’s intent to file the claim that was ultimately received on April 2, 2019. A review of the evidence of record reveals that there is no document that could be construed as a formal or informal claim for service connection or an increased rating for any of the disabilities claimed in April 2019 following the February 2013 rating decision. While there is an indication that the Veteran submitted an intent to file a claim on December 31, 2015, the actual intent to file is not of record. Rather, on January 1, 2016, the Veteran was mailed a letter notifying him that his intent to file have been received on December 31, 2015, and that a completed application for benefits would need to be received within one year to preserve a December 31, 2015, effective date. There is no indication from the record that the Veteran ever submitted a claim on the required form within one year of the December 31, 2015, intent to file. In fact, the Veteran did not submit any other documentation or claim form to VA until the actual formal claim for benefits was received on April 2, 2019. As such, the date of claim in this case was the date of the April 1, 2019, intent to file a claim that was acknowledged by VA. With respect to the date entitlement arose for service connection for the right foot scar, the Board acknowledges that there is an indication from the record that the Veteran had a right foot scar prior to receipt of the April 2019 claim. As such, entitlement arose prior to the date of claim. However, as noted above, the effective date of service connection will be the date of claim or the date entitlement arose, whichever is later. Therefore, the effective date of service is connection has been appropriately set as the date of the intent to file a claim received on April 1, 2019, as it is the later of the date of claim and the date entitlement arose. With respect to the Veteran’s claims for increased ratings, as noted above, the effective date of an increase will be the date of claim, or the date it is factually ascertainable that an increase in disability occurred and the claim for increase was received within one year of that date. In this case, as discussed above, the Veteran did not submit any evidence of an increase in his psychiatric disability or his right index finger strain prior to his April 2019 claim for increase was received. As noted, the only evidence added to the record in the one-year period prior to the April 2019 claim were notification letters sent to the Veteran from VA. As such, the effective date of the increased ratings is appropriately set as the date of claim for such. The Board acknowledges the Veteran’s assertion that his PTSD existed at the time of his January 2012 claim, and as such, his 70 percent rating should go back to the date of service connection for depressive disorder NOS and generalized anxiety disorder. However, the Board notes that in the July 2019 rating decision, the Veteran was not granted entitlement to service connection for a separate and distinct psychiatric disability, rather the disability for which he was already service-connected was recharacterized to reflect his current diagnosis. As such, the fact that the service-connected disability was recharacterized in the July 2019 rating decision is not a sufficient basis for the assignment of an earlier effective date for the 70 percent rating. (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to effective dates earlier than April 1, 2019, for the grant of service connection for a right foot scar, and for the grant of increased ratings for PTSD and a right index finger strain are not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, 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.