Citation Nr: 21071578 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-05 116 DATE: November 30, 2021 ORDER Entitlement to an effective date earlier than October 14, 2015 for the grant of service connection for generalized anxiety disorder is denied. FINDING OF FACT The Veteran's claims for service connection for a psychiatric disorder were denied in final June 2006 and September 2013 rating decisions that were not timely appealed, and she did not file a petition to reopen the claim until October 14, 2015, the current effective date of the grant of service connection for generalized anxiety disorder. CONCLUSION OF LAW The criteria for an effective date earlier than October 14, 2015 for the grant of service connection for generalized anxiety disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks an effective date earlier than October 14, 2015 for the grant of service connection for generalized anxiety disorder. Generally, the effective date of an award of disability compensation shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). For reopened claims, the effective date for the grant of service connection is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). In cases involving new and material evidence other than service department records, (1) when new and material evidence is received within the appeal period or prior to an appellate decision, the effective date will be as though the former decision had not been rendered; and (2) when new and material evidence is received after final disallowance, the effective date will be the date of receipt of new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q). In the present case, a June 2017 rating decision granted an effective date of October 14, 2015 for the grant of service connection for generalized anxiety disorder. However, the Veteran asserts that she is entitled to an earlier effective date of January 10, 2012 because she initially filed a petition to reopen on January 10, 2012. See July 2020 Hearing Transcript. Having reviewed the record, the Board concludes that entitlement to an effective date earlier than October 14, 2015 is not warranted. By way of history, an original claim for service connection was filed in January 2006 and was denied in a June 2006 rating decision. The Veteran filed a timely notice of disagreement in March 2007. A statement of the case was issued in February 2008 and a supplemental statement of the case was issued in May 2008. The Veteran did not file a substantive appeal or submit new and material evidence within the appeal period and, accordingly, the June 2006 rating decision became final. As the June 2006 rating decision rating became final, an earlier effective date is not warranted on this basis. Thereafter, the Veteran filed a petition to reopen the claim in January 2012. The claim was considered reopened, but service connection was denied in September 2013. The record does not contain a notice of disagreement in response to the September 2013 rating decision. The Veteran has asserted that she believed her representative had attempted to file a timely appeal. Specifically, the Veteran testified that after the September 2013 denial, she had given power of attorney to a veteran counselor with the Disabled American Veterans (DAV) in Baltimore, Maryland on June 3rd, 2014 to appeal the claim within one year. She stated that after receiving the December 2018 statement of the case, she called the veteran counselor who told her that he was denied access to her files and was not allowed to continue in the appeal process. Having reviewed the file, the Board finds that there is no evidence that the Veteran or her former representative DAV filed a timely appeal with respect to the September 2013 denial. The only submissions of record after the September 2013 rating decision are an Appointment of Veterans Service Organization as Claimant's Representative form (VA Form 21-22) and a cover letter that were submitted in June 2014. This is consistent with the Veteran's testimony that she gave power of attorney to DAV. However, and significantly, there is no indication or communication that shows the Veteran and/or her former representative intended to file an appeal at that time. Specifically, the June 2014 VA Form 21-22 merely appoints DAV as the Veteran's representative. There are no additional statements or notations on the form expressing a desire or intent to appeal the September 2013 rating decision. Additionally, the accompanying June 2014 cover letter merely noted that a VA Form 21-22 was attached and stated that DAV should be acknowledged and appointed as the Veteran's representative. There are no additional statements or notations on the cover letter expressing a desire or intent to appeal the September 2013 rating decision. Pursuant to 38 C.F.R. § 20.201 (2013), a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement. While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. Id. In this case, the June 2014 VA Form 21-22 and cover letter did not express dissatisfaction or disagreement with the September 2013 rating decision. Accordingly, they cannot be recognized as appropriate notice of disagreements. Of note, there are no further submissions from the Veteran or her former representative until March 2015, well after expiration of the 1-year appeal period. Even so, the March 2015 submission was merely a request for military records and, again, did not express a desire or intent to appeal the September 2013 rating decision. Finally, and contrary to the Veteran's testimony, there is no evidence that DAV was denied access to her files and was not allowed to continue in the appeal process. There were no requests or communications from DAV indicating lack of access to the file. Further, there is no correspondence from VA stating that DAV or the Veteran was not allowed to continue the appeal process. For these reasons, the Board finds that the preponderance of the evidence weighs against finding that a timely appeal was filed with respect to the September 2013 rating decision. Accordingly, the September 2013 rating decision became final and, as such, an earlier effective date is not warranted on this basis. Thereafter, the Veteran did not file a petition to reopen the claim for anxiety until October 14, 2015, the current effective date of the grant of service connection for generalized anxiety disorder. When new and material evidence is received after final disallowance, the effective date will be the date of receipt of new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q). Here, the October 14, 2015 petition was the first claim filed after the final September 2013 disallowance. Accordingly, the Board finds that the assignment of an effective date of October 14, 2015 is appropriate. In conclusion, the Board finds that the evidence establishes that an effective date earlier than October 14, 2015 is not warranted for the grant of service connection for generalized anxiety disorder. In denying the claim, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Vang, 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.