Citation Nr: 21072796 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-53 147 DATE: December 6, 2021 ORDER Entitlement to an effective date prior to May 20, 2016 for the grant of service connection for unspecified anxiety disorder is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for unspecified anxiety disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDINGS OF FACT 1. The Veteran filed his initial claim for entitlement to service connection for a mental health disorder in May 2008 and a September 2008 rating decision denied the claim; he was notified of the decision that month, but he did not initiate an appeal. 2. He did not submit another claim for service connection until May 2016 and an April 2017 rating decision granted the claim effective the date the claim was received on May 20, 2016. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to May 20, 2016 for the grant of service connection for unspecified anxiety disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 2002 to March 2006. This appeal to the Board of Veterans' Appeals (Board) is from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran and his wife testified at a hearing before the undersigned; a transcript of the hearing is in the record. 1. Entitlement to an effective date prior to May 20, 2016 for the grant of service connection for a psychiatric disability is denied. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for an award of disability compensation to a veteran shall be the day following the date of discharge or release if an application is received within one year from such date of discharge release. 38 U.S.C. § 5110(b)(1). On March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed after that date, the amendments are applicable, so the regulations in effect on March 24, 2015 will be applied. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE). In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator, or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). As the Veteran has not alleged CUE, it is not before the Board. The United States Court of Appeals for the Federal Circuit has determined that, even when a Veteran has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date." Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005). The RO received the Veteran's initial claim for service connection for a mental health disorder in May 2008. The claim was denied in September 2008 and he was notified of the decision that same month. The Veteran did not appeal the decision and there is no pertinent evidence of record within one year of the decision, so it is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 3.400. The RO received the next claim for service connection for a mental health disorder on May 20, 2016. The Veteran contends that an earlier effective date is warranted back to the date of the original claim because his problems dated that far back. His wife stated that she was trying to help him with everything on her own and she could not recall if they received notification of the original VA examination that had been scheduled and was missed. See August 2021 Hearing Transcript. The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denials of the claim, as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). The Veteran has not alleged there was CUE in the initial September 2008 denial. The United States Court of Appeals for the Federal Circuit has determined that, even when a Veteran has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date." Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that "no matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). Even if the Veteran had been manifesting symptoms in 2008, the Board is precluded from assigning an earlier effective date because the Veteran did not appeal the original in September 2008 denial of his claim and the RO did not receive another claim until May 20, 2016. For these reasons, the preponderance of the evidence is against the claim for an effective date earlier than May 20, 2016 for the grant of service connection for a psychiatric disability. Hence, the doctrine of reasonable doubt does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The claim, therefore, is denied. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 30 percent for a unspecified anxiety disorder is remanded. There appears to be outstanding treatment records that may be helpful in adjudicating the claim. An August 2017 statement indicates the Veteran was receiving treatment at Union Family Services, but the RO did not attempt to obtain those records. An August 2021 statement from A. Ojok indicates she began treating the Veteran in April 2021, but her records are also not in the claims file. At the hearing, the Veteran indicated he received treatment through Skype, but he did not provide the name of the clinician, so the clinician should be identified, and those records obtained. Ongoing VA treatment records since June 2017 must be added to the record. The available treatment records and lays statements indicate the Veteran's disability may be more severe than what is reflected on the January and June 2017 VA examinations, so the Veteran should be afforded another examination to obtain more current findings. 3. Entitlement to a TDIU is remanded. This matter is inextricably intertwined with the claim seeking a higher rating for the Veteran's psychiatric disability, since the outcome of that issue may affect this issue. Consequently, the issue must also be remanded. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all VA treatment records since June 2017. 2. Ask the Veteran to identify all mental health providers who have treated him since 2016 and then have him complete and return medical releases for each provide. Specifically request releases for A. Ojok, Union Family Services, the clinician who treated him over Skype. 3. After #1 and #2 are completed, schedule the Veteran for a VA examination to determine the severity of his service-connected psychiatric disability. The clinician must also comment on how the Veteran's disability impacted him socially and occupationally and focus on how he was functionally impaired in relation to performing employment activities. 4. Thereafter, readjudicate the claims for an increased rating and TDIU. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.