Citation Nr: 21065634 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-26 816 DATE: October 26, 2021 ORDER Entitlement to an effective date prior to April 30, 2009 for the grant of service connection for major depressive disorder is denied. FINDING OF FACT September 1991 and August 2001 rating decisions denied service connection for depression are final as VA did not receive an appeal or new and material evidence prior to expiration of the appeal period; on April 30, 2009, VA received the Veteran's claim to reopen the prior final disallowance of service connection for major depressive disorder, and the Veteran has not presented any evidence of an earlier unadjudicated pending claim. CONCLUSIONS OF LAW 1. The September 1991 and August 2001 rating decisions that denied service connection for depression are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(a), (b), 20.1103. 2. The criteria for an effective date prior to April 30, 2009, for the grant of service connection for depression are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(a), (b), 3.400(q), (r). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from May 1985 to November 1985 and from April 1987 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. The Board notes that the issue of whether there is clear and unmistakable error (CUE) in prior RO rating decisions is not on appeal. Although the Veteran and his representative asserted at the Board hearing that there was CUE in 1991 and 2001 rating decisions, "a request for revision of an RO decision based on CUE must first be submitted to and adjudicated by the RO." Bowen v. Shinseki, 25 Vet. App. 250, 255 (2012) (citing Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc)). The Veteran has not yet submitted such a request and the RO has not yet adjudicated that claim. As noted by the VLJ at the Board hearing, if the Veteran wishes this issue to be addressed, then he must submit a motion to the RO. See Hearing Transcript (March 2021). Entitlement to an effective date prior to April 30, 2009 for the grant of service connection for depression is denied. The Veteran is seeking entitlement to an effective date earlier than April 30, 2009 for a grant of service connection for depression. He contends that the correct date of the award should be 1991. See Hearing Transcript at 3 (March 2021). The Board concludes that the preponderance of the evidence is against an effective date earlier than earlier than April 30, 2009 for a grant of service connection for depression based on a reopened claim after a final disallowance. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.156, 3.400(q), (r). Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). Where a claim is granted after the submission of new and material evidence, the effective date is the later of the date of receipt of the new claim or the date entitlement arose. 38 C.F.R. § 3.400(q)(2) (providing the same for awards of compensation based on new and material evidence received after final disallowance); 38 C.F.R. § 3.400(r) (providing the same for awards of compensation based on reopened claims). Prior to March 24, 2015, a claim was "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). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - 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). 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); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. In a September 1991 rating decision, the RO denied the Veteran's claim of entitlement to service connection for depression finding that the evidence of record did not show that his mental disorder was either occurred in or caused by military service. See Rating Decision (September 1991). This was based, in part, on a July 1991 VA examination report that noted a history of depression that was currently inactive. See VA Examination (August 1991). The Veteran was notified of this decision in an October 1991 letter. See Notification Letter (October 1991). VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the September 1991 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. In an August 2001 rating decision, the RO denied the Veteran's claim of entitlement to service connection for depression finding that the evidence of record did not show that his mental disorder was either occurred in or caused by military service. See Rating Decision (August 2001). This was based, in part, on a January 2001 VA examination report that diagnosed major depressive disorder but did not provide a nexus opinion. See VA Examination (January 2001). VA notified the Veteran of this decision in an August 2001 letter and how to appeal. See Notification Letter (August 2001). In September 2001, the Veteran notified VA he had moved and requested a copy of the most recent rating decision be sent to his new address. See FOIA/Privacy Act Request (September 2001). This was accomplished later that same month. See FOIA/Privacy Act Request (September 2001). VA received no appeal or submit new and material evidence prior to expiration of the appeal period. Therefore, the August 2001 (with notice in September 2001) rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 20.1103. On April 30, 2009, VA received a statement from the Veteran requesting reopening of his claim for depression. See VA 21-4138 Statement in Support of Claim (May 2009). In a June 2010 rating decision, the RO found there was no new and material evidence submitted to reopen the claim. See Rating Decision (June 2010). The Veteran appealed the denial of the claim. See NOD (June 2011). A July 2011 VA examination report provided a positive nexus opinion. See VA Examination (July 2011). Then, in a February 2013 rating decision, the RO granted service connection for major depressive disorder and assigned a 50 percent evaluation, effective April 30, 2009. See Rating Decision (February 2013). VA notified the Veteran of this decision in a June 2013 letter. See Notification Letter (June 2013). The Veteran appealed the assigned effective date. See NOD (June 2014); SOC (March 2017); Form 9 (May 2017). The Board finds that there is no basis for the assignment of an effective date prior to April 30, 2009. As the effective date for a reopened claim after a final disallowance shall be the date of receipt of the new claim or date entitlement arose, whichever is later, 38 C.F.R. § 3.400(q)(1)(ii), the claim for an effective date earlier than April 30, 2009 for the grant of service connection for depression is not warranted. The Board has considered whether new and material evidence had been submitted after the 2001 denial of benefits and prior to expiration of the appeal period, and whether there was a prior unadjudicated pending claim. However, the record contains no evidentiary submissions that could be construed as new and material evidence prior to expiration of the appeal period, or that could be reasonably construed as claim for mental disorder. Indeed, a review of the claims file indicates that, in between August 2001 and April 30, 2009, there is no earlier submission that can be characterized as a formal or informal claim. Further, even presuming that the date of entitlement is prior to April 2009, the proper effective date is the later of the two dates, which would still be April 30, 2009. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Accordingly, and based on the above facts, the RO correctly found that the effective date for the award of service connection is April 30, 2009. See 38 C.F.R. § 3.400(q)(1)(ii). As such, the Board finds that the evidence of record provides no basis for an earlier effective date. (Continued on the next page) Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.