Citation Nr: A21020557 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 210419-153900 DATE: December 27, 2021 ORDER Entitlement to an effective date earlier than August 10, 2020 for the grant of service connection for other specified trauma and stressor-related disorder, to include chronic adjustment disorder, is denied. FINDINGS OF FACT 1. In June 2009, the Veteran submitted his initial informal claim for service connection for depression. 2. A February 2010 rating decision denied service connection for depression, and, after being notified of the decision and his appeal rights, the Veteran did not submit a notice of disagreement (NOD) or submit new and material evidence concerning the claim within one year of the notification. 3. In November 2014, the Veteran claimed entitlement to service connection for posttraumatic stress disorder (PTSD) and associated mental disorders, including adjustment disorder and major depressive disorder. 4. A November 2015 rating decision continued the previous denial of service connection for depression, now claimed as PTSD and associated mental disorders, including adjustment disorder and major depressive disorder, and, after being notified of the decision and his appeal rights, the Veteran did not submit an NOD or submit new and material evidence concerning the claim within one year of the notification. 5. On August 10, 2020, the Veteran submitted a supplemental claim for service connection for depression, now claimed as PTSD and associated mental disorders, including adjustment disorder and major depressive disorder, and now claimed as secondary to scleroderma, chronic sinusitis, residual scar, and all other service-connected disabilities. 6. An October 2020 rating decision granted service connection for other specified trauma and stressor related disorder, to include chronic adjustment disorder, effective August 10, 2020. 7. Following the November 2015 rating decision, there was no intent to file a claim or a formal claim to reopen the previously denied claim for service connection for a psychiatric disorder prior to August 10, 2020. CONCLUSION OF LAW The criteria for an earlier effective date than August 10, 2020 for the grant of service connection for other specified trauma and stressor-related disorder, to include chronic adjustment disorder, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from February 1966 to March 1966. In an October 2020 rating decision, the agency of original jurisdiction (AOJ) granted service connection for other specified trauma and stressor related disorder, to include chronic adjustment disorder, effective August 10, 2020. In December 2020, the Veteran submitted VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the October 2020 rating decision regarding the effective date assigned. In March 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior October 2020 rating decision. In the April 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may consider only the evidence of record at the time of the October 2020 rating decision, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Notably, following the April 2021 VA Form 20182, neither the Veteran nor his representative submitted any additional relevant evidence pertaining the effective date assigned for the service-connected other specified trauma and stressor-related disorder, to include chronic adjustment disorder. Entitlement to an earlier effective date than August 10, 2020 for the grant of service connection for other specified trauma and stressor-related disorder, to include chronic adjustment disorder. The Veteran claims generally that an earlier effective date than August 10, 2020 is warranted for the grant of service connection for other specified trauma and stressor-related disorder, to include chronic adjustment disorder. The Veteran's attorney has asserted that an earlier effective date is warranted based on the fact that a prior November 2015 rating decision did not address secondary service connection for the claimed psychiatric disability based on VA treatment reports showing that the Veteran's anxiety is caused by his service-connected disabilities. However, following a review of the evidence of record, and as discussed further below, the Board finds that the preponderance of the evidence of record weighs against the Veteran's claim for entitlement to an effective date earlier than August 10, 2020 for the grant of service connection for other specified trauma and stressor-related disorder, to include chronic adjustment disorder. The reasons for this decision follow. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. The general rule regarding effective dates is that the effective date of an award based upon on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. Id. The implementing regulation adds that except as otherwise provided, the effective date of an award of compensation based on an initial claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Prior to March 24, 2015, VA recognized formal and informal claims. An informal claim was "[a]ny communication or action, indicating an intention to apply for one or more benefits.... Such informal claim must identify the benefit sought." 38 C.F.R. § 3.155(a) (prior to March 24, 2015). 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). Also prior to March 24, 2015, reports of examination or hospitalization from VA, private physicians, or state or other institutions, may be accepted in certain circumstances as claims for increase or claims to reopen. 38 C.F.R. § 3.157(a) (prior to March 24, 2015). Significantly, receipt of such reports of examination or hospitalization may only be accepted as an informal claim for increased benefits if a formal claim for compensation has been previously allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree. 38 C.F.R. § 3.157(b) (prior to March 24, 2015). Effective March 24, 2015, VA no longer recognized informal claims. See 79 Fed. Reg. 57,660-01 (2015). In their place, VA recognizes "an intent to file a claim," which may be submitted electronically, on a prescribed intent to file form, or through an oral communication to certain VA employees that is later recorded in writing. 38 C.F.R. § 3.155(b)(1)(i)-(iii). If VA receives a complete application form as defined in 38 C.F.R. § 3.160(a) within one year of receipt of an intent to file, VA will consider the complete claim filed as of the date the intent to file was received. 38 C.F.R. § 3.155(b). Additionally, the March 2015 amendment required that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). Finally, the rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). A review of the record documents that the Veteran first submitted an initial claim for service connection for depression in June 2009. Thereafter, a February 2010 rating decision denied service connection for depression. After being notified of the decision and his appeal rights, the Veteran did not submit an NOD or submit new and material evidence concerning the claim within one year of the notification. Therefore, the February 2010 rating decision became final. The Veteran next claimed entitlement to service connection for PTSD and associated mental disorders, including adjustment disorder and major depressive disorder, in November 2014. Thereafter, a November 2015 rating decision continued the previous denial of service connection for depression, now claimed as PTSD and associated mental disorders, including adjustment disorder and major depressive disorder. After being notified of the decision and his appeal rights, the Veteran did not submit an NOD or submit new and material evidence concerning the claim within one year of the notification. Therefore, the November 2015 rating decision became final as to the continued denial of service connection for a psychiatric disorder. Subsequently, on August 10, 2020, the Veteran submitted a supplemental claim for service connection for depression, now claimed as PTSD and associated mental disorders, including adjustment disorder and major depressive disorder, and now claimed as secondary to scleroderma, chronic sinusitis, residual scar, and all other service-connected physical conditions. An October 2020 rating decision granted service connection for other specified trauma and stressor related disorder, to include chronic adjustment disorder, effective August 10, 2020. The Board has considered the evidence of record; however, there is no probative evidence of a valid claim to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder prior to the Veteran's August 10, 2020 supplemental claim, which is the basis of the currently assigned effective date. To the extent that the Veteran and/or his attorney have asserted that an earlier effective date is warranted based on the fact that the prior November 2015 rating decision did not address secondary service connection for the claimed psychiatric disability based on VA treatment reports showing that the Veteran's anxiety is caused by his service-connected disabilities, the Board notes that prior to his August 10, 2020 supplemental claim, the Veteran did not claim entitlement to service connection for a psychiatric disorder on a secondary basis. Specifically, the Veteran was alleging two in-service incidents that he believed caused his psychiatric disorder. See November 2014 submissions. He was not alleging secondary service connection at that time. Moreover, a review of VA treatment records prior to the November 2015 rating decision document that the Veteran was prescribed medication for psychiatric diagnoses and related symptoms; however, VA treatment records do not otherwise provide probative evidence of a link between a psychiatric disorder and the Veteran's service-connected disabilities. In this particular case, the earliest possible effective date remains the date entitlement arose or the date of claim, whichever is later. The statute says that the effective date is based on facts found but will not be earlier than the date of claim. In cases such as this, where the law is dispositive and the case turns on undisputed facts regarding the date of receipt of a claim, the appeal should be denied because of the absence of legal merit. Given that the Veteran's most recent date of claim is based on his August 10, 2020 supplemental claim, and the proper effective date can be no earlier than the date of claim, the Veteran's claim for an effective date earlier than August 10, 2020 for the grant of service connection for other specified trauma and stressor-related disorder, to include chronic adjustment disorder, is denied. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, 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.