Citation Nr: 21021427 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-17 552 DATE: April 13, 2021 ORDER Entitlement to an effective date of August 31, 2011, but no earlier, for the assigment of an increased, 50 percent evaluation for service-connected panic disorder is granted. Entitlement to an effective date earlier than August 28, 2012, for the award of service connection for irritable bowel syndrome (IBS) as secondary to panic disorder is denied. FINDINGS OF FACT 1. The Veteran’s claim for service connection for Sjogren’s disease and psoriatic arthritis secondary to a panic disorder, received August 31, 2011, may be treated as an informal claim for an increased rating for panic disorder. 2. The Veteran did not claim service connection for IBS until August 28, 2012, and it cannot be ascertained that his IBS had its onset within one year prior to the Veteran filing his claim. CONCLUSIONS OF LAW 1. The criteria for an effective date of August 31, 2011, for the assignment of a 50 percent rating for panic disorder have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 2. The criteria for an effective date earlier than August 28, 2012, for the award of service connection for IBS have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1975 to December 1978, and in the United States Army from September 1988 to October 1990. These matters come before the Board of Veterans Appeals (Board) on appeal from February 2013 and May 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to earlier effective date for the assignment of a 50 percent evaluation for panic disorder Claims for increased benefits may be awarded at the earliest date in which it is factually ascertainable that an increase in disability occurred, if the claim or intent to file a claim is received within one year of that date. Otherwise, the increased rating is effective on the date VA received the claim. 38 C.F.R. § 3.400(o)(2). Under the legacy system, the VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in a form prescribed by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). The RO’s February 2013 decision granted an increased rating of 50 percent for the Veteran’s service-connected panic disorder, effective April 27, 2012. On April 27, 2012, VA received a Statement in Support of Claim from the Veteran, which he submitted in support of a claim for entitlement to service connection for a sleep disorder secondary to his service-connected panic disorder. The RO apparently treated this as his claim for an increased rating for said panic disorder, and subsequently assigned the increased 50 percent rating. In June 2013, the Veteran filed a Notice of Disagreement (NOD) arguing that the effective date of the increased rating should be August 31, 2011, the date VA received his claim for entitlement to service connection for Sjogren’s disease and psoriatic arthritis (to include neuropathy in lower extremity). In response to the Veteran’s June 2013 NOD, the RO issued a Statement of the Case (SOC) in January 2016, granting the earlier effective date of August 31, 2011. However, in March 2016, the RO issued a Supplemental Statement of the Case (SSOC) apparently rescinding this decision, stating that “an increased evaluation of 50 percent was properly assigned for your panic disorder from April 27, 2012, as this as this is the date we first received your claim.” The Board finds that August 31, 2011, is the appropriate effective date for the increased rating for panic disorder. The claims the Veteran filed in August 2011—for Sjogrens disease and psoriatic arthritis—were not specifically discussed in the RO’s February 2013 rating decision, yet the rating decision codesheet lists these conditions as “not service connected, not secondary.” It appears that the RO simply treated all of the Veteran’s claims for service connection secondary to panic disorder (except his claim for IBS, which is addressed below) as part and parcel of a claim for an increased rating for his panic disorder. In that case, common sense dictates that the Veteran’s claim for an increased rating for panic disorder dates back to when those claims for secondary service connection were received. There is at least as much justification for treating the August 2011 application as the initial increased rating claim as there is for treating the April 2012 application (which was also a secondary service connection claim) as such. The Board cannot grant an effective date earlier than August 31, 2011, because there is nothing in the record indicating that the increase in the severity of his panic disorder occurred on an ascertainable date within the prior year. Indeed, the medical evidence for the one-year-look-back period does not reflect treatment for the psychiatric treatment or evidence of symptoms that would warrant a 50 percent rating. See 38 U.S.C 4.130 Diagnostic Code 9411. Therefore, the Board grants an effective date of August 31, 2011 for the grant of a 50 percent evaluation for panic disorder. Entitlement to earlier effective date for service connection for IBS Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. While the Veteran submitted numerous claims and supporting documents seeking service connection for multiple conditions secondary to his panic disorder, the Veteran did not specifically mention IBS until he submitted a Statement in Support of Claim on August 28, 2012, in which he said “my IBS is also related to my stress levels [from my panic disorder].” The RO treated this statement as an informal claim for service connection for IBS secondary to panic disorder, and when service connection was granted for IBS, August 28, 2012, was the effective date. (Continued on the next page) The Board cannot find a justification for an earlier effective date. While the Veteran’s IBS is mentioned in medical evidence prior to August 28, 2012, (including a July 2012 VA examination, and private medical records submitted by the Veteran in August 2011) the mere presence of medical evidence does not establish an intent to seek service connection, and cannot be treated as an informal claim. Brannon v. West, 12 Vet. App. 32, 35 (1998). The August 28, 2012 statement is the earliest-received document that can be interpreted as the Veteran claiming service connection for IBS. Therefore, the effective date of service connection for IBS remains August 28, 2012, and entitlement to an earlier effective date is denied. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shermila Sundquist 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.