Citation Nr: A21020607 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 201201-166620 DATE: December 29, 2021 ORDER Entitlement to an effective date earlier than September 23, 2015 for the award service connection for schizoaffective disorder, depressive type is denied. Entitlement to an effective date earlier than September 23, 2015 for Dependents' Educational Assistance (DEA) is denied. FINDINGS OF FACT 1. The Veteran did not submit a claim, either formal or informal, for service connection for schizoaffective disorder, depressive type (claimed as posttraumatic stress disorder) until September 23, 2015. 2. The Veteran did not have a permanent and total disability prior to September 23, 2015. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 23, 2015 for the award of a 100 percent rating for schizoaffective disorder, depressive type (claimed as posttraumatic stress disorder) have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 2. The criteria for an effective date earlier than September 23, 2015 for Dependents' Educational Assistance (DEA) have not been met. 38 U.S.C. §§ 3501, 5110; 38 C.F.R. §§ 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from July 1975 to January 1977. The appellant is the Veteran's surviving spouse. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). That law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA became effective on February 19, 2019. In December 2020, the appellant filed a Notice of Disagreement (NOD) (VA Form 10182) under the AMA framework seeking a hearing with a Veterans Law Judge (VLJ) subsequent to a December 2019 rating decision. Thus, her appeal will be based upon the evidence of record at the time of the December 2019 agency of original jurisdiction determination as well as the evidence submitted to VA as of 90 days after the date of the hearing. The Appellant testified at the hearing before the undersigned in June 2021. 1. Entitlement to an effective date earlier than September 23, 2015 for service connection for schizoaffective disorder, depressive type The Appellant seeks an effective date prior to September 23, 2015, for the award of the 100 percent rating for Veteran's schizoaffective disorder, depressive type. The Veteran was granted the 100 percent evaluation in the December 2019 rating decision, with an effective date of September 23, 2015, the date the VA received the claim. See September 2015 VA 21-526EZ. Generally, the effective date for an award of disability compensation based on an original claim for direct service connection, shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, and for reopened claims, it 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. Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). VA regulations also provide that the terms "claim" and "application" mean 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). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Here, the RO granted service connection and a 100 percent evaluation effective the date the Veteran's original claim of service connection for his psychiatric disability was filed with VA. An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). There is no earlier claim than the claim received on September 23, 2015. The 100 percent rating for the Veteran's service-connected psychiatric disability was awarded from the date of the Veteran's claim, thus there is no basis for awarding an effective date earlier than the date of that claim. As the preponderance of the evidence is against the claim for an effective date earlier than September 23, 2015, for the award of a 100 percent rating for Veteran's psychiatric disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an effective date earlier than September 23, 2015 for Dependents' Educational Assistance (DEA) The Board's denial of an earlier effective date for the 100 percent rating of Veteran's service-connected psychiatric disability precludes the assignment of an effective date prior to September 23, 2015 for the award of DEA benefits. In this regard, for purposes of DEA benefits under 38 U.S.C. Chapter 35, the law relevant to the Veteran's current claim provides that basic eligibility exists where the Veteran was discharged from service under conditions other than dishonorable and has a total disability permanent in nature as a result of a service-connected disability. 38 U.S.C. § 3501(a)(1); 38 C.F.R. §§ 3.807(a), 21.3021. With certain exceptions that are not applicable to the instant claim, the effective date for the grant of such award shall, to the extent feasible, correspond to effective dates for awards of disability compensation. 38 U.S.C. § 5113 (a). A total disability may be assigned where the Veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the Veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Here, the currently assigned effective date of September 23, 2015, for basic eligibility for DEA benefits is directly related to the 100 percent evaluation for Veteran's schizoaffective disorder, depressive type. See December 2019 Rating Decision (granting service connection effective September 23, 2015 and establishing entitlement to DEA benefits, effective that same date). Since eligibility for DEA benefits under 38 U.S.C. Chapter 35 is predicated on a finding of a total (100 percent) disability rating, the effective date of such eligibility cannot precede the September 23, 2015 service connection grant of the 100 percent rating. Accordingly, although the Veteran contends that the effective date should be earlier, the assignment of an effective date prior to September 23, 2015 for the award of DEA benefits is precluded by law. See 38 U.S.C. §§ 3501(a)(1), 5113(a); 38 C.F.R. §§ 3.807(a), 21.3021. See also Sabonis v. Brown, 6 Vet. App. 426 (1994) (noting that when the law is dispositive of the claim, then the claim must, as a matter of law, be denied because of the absence of legal merit or lack of entitlement under the law). Because the law, and not the facts, is dispositive of the outcome of this issue, the benefit-of-the-doubt rule does not apply. See Sabonis, 6 Vet. App. at 430; see also 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In reaching this determination, the Board acknowledges the argument set forth by the appellant's attorney that this AMA appeal is inextricably intertwined with the appellant's pending Legacy appeal. As her counsel argued, because the effective dates of the claims pending in the Legacy system predate the current 100 percent rating for the Veteran's psychiatric disability, an earlier effective date for DEA benefits under Chapter 35 may be warranted because the evidence may show that the Veteran was entitled to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to the current effective date of the 100 psychiatric disability rating. See transcript of June 2021 Board hearing at page 2. Here, the four service connection issues pending in Legacy were filed on July 17, 2012. The Board observes, however, that VA regulations provide that the scope of a claim includes ancillary benefits. Indeed, the pertinent regulation states, Once VA receives a complete claim, VA will adjudicate as part of the claim entitlement to any ancillary benefits that arise as a result of the adjudication decision, which specifically includes entitlement to 38 U.S.C. Chapter 35 Dependents' Educational Assistance benefits. 38 C.F.R. § 3.155(d)(2). As such, the Board finds that adjudicating the appeal at this time based on the current record does not result in any prejudice to the appellant. Id. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.