Citation Nr: 21024046 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-63 600 DATE: April 22, 2021 ORDER Entitlement to an effective date earlier than November 27, 2012 for entitlement to service connection for anxiety disorder, is denied. FINDINGS OF FACT 1. In March 2012, the RO denied service connection for an acquired psychiatric disorder, claimed as PTSD. The Veteran did not express timely disagreement or submit new and material evidence within one year, and the decision is final. 2. VA received the Veteran’s application to reopen the claim on November 27, 2012. 3. Evidence received within one year of the March 2012 rating decision was cumulative of that already considered. CONCLUSION OF LAW The criteria for an effective date earlier than November 27, 2012 have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1989 to August 2010 including service in Southwest Asia. He was awarded the Bronze Star Medal and Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his spouse testified at a February 2021 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Entitlement to an earlier effective date prior to November 27, 2012, for entitlement to service connection for anxiety disorder The effective date for an award of compensation based on an original claim will 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. The Veteran filed a claim for “PTSD-readjustment problems,” among other disabilities, on July 7, 2010. The claim was denied in a March 2012 rating decision. With respect to anxiety disorder, the rating decision indicated the record did not show a current diagnosed disability or an event, disease, or injury in service. With respect to PTSD, the rating decision indicated the evidence did not show a current diagnosed disability. The February 2011 VA examiner noted a review of the file at that time that included the Veteran’s report of combat action and a copy of the award of the Combat Action Ribbon. The examiner cited a previous provisional diagnosis of PTSD made in September 2010 but found on examination that the Veteran’s symptoms did not warrant a diagnosis of PTSD or any other mental health disorder. In the letter forwarding the March 2012 decision, the RO advised the Veteran that if he disagreed with the decision, he should write within one year to explain why. The RO attached a VA Form 4107 that explained his right to appeal. A notice of disagreement was not filed in response to the March 2012 rating decision. During the Board hearing, the Veteran testified that he did submit a notice of disagreement in November 2012 and had a copy with a date of receipt stamp from VA. However, this has not been received. The Veteran indicated in his December 2016 VA Form 9 that on January 30, 2014 he filed a second notice of disagreement regarding the anxiety disorder. However, the record does not include an earlier notice of disagreement pertaining to the anxiety disorder. In November 2012, the Veteran filed a VA 21-526EZ Application for Disability Compensation and Related Compensation Benefits, in which he indicated he was claiming “reopened disabilities” of PTSD and adjustment disorder, also claimed as re-adjustment problem. He did not express disagreement with the March 2012 rating decision. In his December 2016 substantive appeal, the Veteran noted that his submission was a request for reconsideration of the March 2012 rating decision and that the RO committed clear and unmistakable error by not considering his submission correctly. However, the Veteran’s statement on the VA Form 21-526 EZ clearly states a request to reopen the claim and not reconsideration or disagreement with the March 2012 rating decision. The RO viewed this as a request to reopen the claim. The RO engaged in additional development, and in a December 2013 rating decision granted the Veteran’s claim and assigned a 30 percent rating for anxiety disorder effective November 27, 2012. The evidence listed in this rating decision does not include anything prior to November 5, 2013 although the file contained the evidence up to this date. Nevertheless, the March 2012 rating decision would not become final if the Veteran identified or submitted new and material evidence of symptoms or a diagnosis of current mental health disability. In February 2013 within one year of the March 2012 rating decision, additional private medical records were added to the Veteran’s file, including treatment notes dated August 2011 from a pain management clinician who noted the Veteran reports of insomnia, anxiety, and nervousness. These records were new considering they were not previously part of the record. 38 C.F.R. § 3.156(a). However, these reports are cumulative because the symptoms were reported by the Veteran and considered by the examiner who performed the February 2011 VA examination. The threshold for determining whether evidence is material and has a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110 (2010). However, the Board finds the treatment records noting the Veteran’s symptoms at the time were cumulative of those previously considered and do not preclude the finality of the March 2012 rating decision. See 38 C.F.R. § 3.156. Because the Veteran did not file a notice of disagreement or submit new and material evidence within one year of notice of the March 2012 rating decision, it became final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103 (2020). The Veteran underwent a new VA examination in December 2013 in which the examiner again noted a 2010 provisional diagnosis of PTSD and adjustment disorder. This examiner diagnosed anxiety disorder, not otherwise specified, and found that it was related to the Veteran’s combat experiences. In a December 2013 rating decision with notice to the Veteran in January 2014, the RO granted service connection for anxiety disorder and assigned a 30 percent rating, effective November 27, 2012, the date of the Veteran’s application to reopen the claim. Therefore, the date of application to reopen the claim in this case is November 27, 2012. Consequently, an earlier effective date is not warranted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Vemulapalli, Associate 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.