Citation Nr: 21002838 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 14-41 940 DATE: January 15, 2021 ORDER An effective date of February 17, 1969 for the grant of service connection for an anxiety disorder is granted. FINDINGS OF FACT 1. VA received the claim for service connection for anxiety reaction/heart disorder on February 17, 1969. 2. Service connection for nervous reaction (anxiety disorder) was initially denied in a final decision that was issued in June 1969; the Veteran did not appeal, and new and material evidence was not received within a year of that decision. 3. The Veteran next communicated his desire to file claims for service connection for a nervous condition in February 1971 and January 1973; these claims were subsequently abandoned when he did not respond to requests for evidence. 4. The record shows that the Veteran next communicated his desire to file a claim for service connection for anxiety disorder on January 20, 2010. 5. In June 2010, relevant official service department records were received into the record that were not associated with the claims file when VA first decided the claim in June 1969. 6. In April 2012, the RO granted service connection for an anxiety disorder, effective April 19, 2010. In September 2014, the RO granted an earlier effective date of January 20, 2010, the date VA received the Veteran’s claim to reopen the previously denied claim. 7. Resolving all reasonable doubt in favor of the Veteran, the Veteran’s anxiety disorder has existed since the date of his initial claim in February 1969. CONCLUSION OF LAW The criteria for an effective date of February 17, 1969, for the award of service connection for an anxiety disorder are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1966 to September 1968. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Jurisdiction subsequently was transferred to the RO in St. Petersburg, Florida. The September 2010 rating decision denied service connection for anxiety reaction. An April 2012 rating decision granted service connection for anxiety disorder with an evaluation of 30 percent effective April 19, 2010. In a September 2014 rating decision, the RO granted an earlier effective date of January 20, 2010 for anxiety disorder. The RO also increased the evaluation to 70 percent effective January 8, 2014. This matter was before the Board in July 2018. In that decision, the Board denied an effective date earlier than January 20, 2010 for the award of service connection for an anxiety disorder. In February 2020, the United States Court of Appeals for Veterans Claims (Court) granted the Veteran’s and the Secretary’s Joint Motion for Partial Remand (JMPR) and vacated and remanded that portion of the Board’s decision that addressed the earlier effective date claim for the award of service connection for an anxiety disorder. The JMPR specifically found that the Board had erred by not addressing whether an earlier effective date was warranted under 38 C.F.R. § 3.156(c), which was necessary because it had received additional service department records in June 2010 that had not been associated with the file. The JMPR noted that the RO had subsequently issued a rating decision in January 2012, granting service connection for PTSD upon finding that “exposure to combat is established” and that the Veteran’s PTSD was “related to stressors and combat experiences while in service.” The Board will address the findings of the JMPR below. The Veteran seeks an effective date even earlier than January 20, 2010. Specifically, the Veteran and his attorney contend that the Veteran has had a pending claim for service connection for an anxiety disorder since 1971 and, thus, service connection should be awarded from that date. See Veteran’s attorney’s September 2020 written argument to VA at pages (pgs.) 6-7)). 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 application 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). Thus, with respect to the earlier effective date claim on appeal here, the Board will focus the analysis on determining the proper date of the claim and the entitlement arose. Thereafter, the proper effective date is determined by taking the latter of the two dates determined. See 38 C.F.R. § 3.400(q)(2). VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding the requirement for new and material evidence. See 38 C.F.R. § 3.156(c)(1). An award based all or in part on newly received service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. See 38 C.F.R. § 3.156(c)(3). In Emerson v. McDonald, 28 Vet. App. 200 (2016), the Court further clarified that VA must reconsider a claim when relevant service records are received at any time after the original denial. At the outset, the Board notes that the Veteran filed an initial claim for service connection for anxiety reaction/heart disorder in February 1969. The RO denied service connection, in part, for an anxiety disorder in a June 1969 rating decision. The Veteran was notified of this decision and his appellate rights by letter dated July 1969. He did not appeal, and no new and material evidence, including new claims, was received within one year of the decision. Therefore, the June 1969 decision became final. 38 U.S.C. § 7105(b)(2)(c); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.201, 20.302(a). Subsequently, the Veteran filed claims to reopen service connection for a nervous disorder in February 1971 and January 1973. The RO responded with letters dated March 1971 and March 1973 requesting medical evidence. However, the Veteran failed to respond to those letters. There is no indication of nonreceipt, nor were the letters returned as undeliverable. In its July 2018 decision, the Board found that because the Veteran had failed to provide the requested evidence, he had abandoned the February 1971 and January 1973 claims. The Veteran filed a new claim for service connection for anxiety disorder on January 20, 2010. Where there is an abandoned claim, the Veteran must file a new claim, and the effective date will not be earlier than the date of receipt of the new claim, which in this case would be January 20, 2010, the current effective date assigned. 38 C.F.R. § 3.158(a). Aside from the aforementioned claims, the claims folder contains no other communication from the Veteran or his representative indicating an intent to seek, or a belief in entitlement to, service connection for anxiety disorder prior to the January 20, 2010 claim currently on appeal. Thus, the Board determined in its July 2018 decision that the proper date of claim was the date that the January 20, 2010 claim for service connection for anxiety was received. In June 2010 and October 2014, the RO received additional military personnel and service treatment records, respectively. The additional service department records received in June 2010, by law, allow for reconsideration of the earlier RO adjudications. They are clearly pertinent to the claim (and appear to be the basis of the grant of service connection) because they show that the Veteran served in the Republic of Vietnam from January 29, 1968 and from September 13, 1968 and that he received treatment for anxiety. Thus, the February 1969 claim remained pending until it was eventually granted by the Board in July 2018. See 38 C.F.R. §§ 3.156(c), 3.400(q)(2). Although the unit records corroborate the Veteran’s RVN service and treatment for anxiety, 38 C.F.R. § 3.156(c) also states that an award made based on newly submitted service department records is effective the date VA received the prior claim, or the date entitlement arose, whichever is later. As noted, the Veteran’s initial claim for service connection was received in February 1969. As to the date entitlement arose, the evidence of record includes a VA opinion which provided a diagnosis and link to the Veteran’s fear of hostile enemy action in service. The evidence of record also includes an opinion from Dr. G. indicating that the severity of the Veteran’s symptoms has varied throughout the years; upon his return from Vietnam, through most of the 1970s, he suffered severe symptoms and impairment. It was noted that the Veteran’s ability to establish and maintain effective or favorable relationships with people was severely impaired, and his symptoms were of such severity and persistence that there was significant impairment in his ability to obtain or retain employment. Thus, it can be inferred from Dr. G.’s conclusions that the Veteran’s anxiety disorder symptoms had been present for almost 50 years since the time of his military service in 1968. As such, the criteria for entitlement to service connection for anxiety disorder were arguably met as early as 1968. Thus, the date of claim (February 17, 1969) is later than the date entitlement arose for service connection for anxiety disorder (1968). Accordingly, the Board concludes that February 17, 1969, is the proper effective date for the award of service connection for anxiety disorder. 38 U.S.C. § 5107(b). MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.