Citation Nr: 21027289 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-62 122A DATE: May 5, 2021 ORDER Entitlement to an effective date prior to July 22, 2014 for the grant of service connection for an adjustment disorder with mixed anxiety and depressed mood is denied. Entitlement to an effective date prior to July 22, 2014 for the grant of service connection for residuals of a tailbone injury is denied. FINDING OF FACT The evidence is against a finding that the Veteran submitted a claim for service connection prior a July 22, 2015 VA Form 21-526EZ. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to July 22, 2014 for the grant of service connection for adjustment disorder with mixed anxiety and depressed mood have not been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.114(a), 3.151(a), 3.155, 3.400. 2. The criteria for an effective date prior to July 22, 2014 for the grant of service connection for residuals of a tailbone injury have not been satisfied. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.114(a), 3.151(a), 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 2009 to March 2012. This matter comes to the Board of Veterans' Appeals (Board) from a March 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that awarded grants of service connection for an adjustment disorder with mixed anxiety and depressed mood and residuals of a tailbone injury. The Veteran appeals the January 22, 2014 effective date assigned for each of these awards. The issues were previously before the Board in May 2020, where they were remanded for additional adjudication. They now return for further appellate review. Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. Effective Dates Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). For purposes of this appeal, the VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the 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) (2013). 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 mere presence of medical evidence does not establish an intent to seek service connection. See Brannon, supra (holding that the mere receipt of medical records could not be construed as an informal claim); see also Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006) ("[W]here there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised."). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form prescribed by the Secretary of VA. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. See 38 C.F.R. § 3.155 (2020). Informal claims as originally codified in 38 C.F.R. § 3.157 were eliminated. Additionally, if compensation is awarded pursuant to a liberalizing law, an effective date earlier than the date of receipt of the claim may be warranted. Specifically, if a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). Finally, if a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3) In a VA Form 21-526EZ received by VA on July 22, 2015, the Veteran indicated that she wished to file a claim of service connection for residuals of a tailbone injury and anxiety disorder, among other disabilities. Accordingly, and pursuant to its March 2016 grants of service connection for an adjustment disorder and residuals of a tailbone injury, the RO assigned effective dates of July 22, 2014, one year prior to the date of receipt of this formal claim for service connection in accordance with the provisions of 38 C.F.R. § 3.114 (a)(3). The Veteran appealed the effective dates and ratings assigned for these awards. Here, the evidence of record does not reflect any written communication from the Veteran and received by VA prior to July 2015 that may be interpreted as a formal or informal claim for service connection for these disabilities. Further, the earliest medical evidence of record indicating a nexus between her service and the disabilities at issue were VA examinations provided for her service connection claims in March 2016. The Veteran asserts, however, including during her hearing before the undersigned, that she filed a claim in Las Vegas after she separated from service. She explained that she printed her records, drove to the Las Vegas RO, and submitted the claim in person. She testified that a year later, while living in Kansas, she was experiencing a medical and financial crisis and called VA to see what progress had been made on her claim and was advised that her records could have potentially been lost in a fire. However, when she called back a few days later and spoke with someone else, she was advised that there had been no fire and that they could see that she had filed a claim. As the Board noted in its previous remand, review of the file reveals a Pre-separation Counseling Checklist showing that the Veteran attended a Veterans Benefits Briefing in November 2011 prior to her separation from service. A Report of Medical Assessment completed by the Veteran in November 2011 indicates that she intended to seek VA disability for her eye/vision disability and kidney stones; and that she possibly intended to apply for disability for her tailbone. Of particular note, the Veteran provided screenshots in support of her claim of VA website showing a compensation claim received February 28, 2012 and closed on July 6, 2013. Under the section titled "What you've claimed," it states "Claimant Text was null. This was filled in from a cleanup script." No information was provided, indicating what disabilities were being claimed. The Veteran's service treatment records were obtained by VA in May 2012, apparently prompted by the submission of her claim. Additionally, her July 2015 Form 21-526EZ indicates that she first began VA treatment in December 2013, and noted "yes" when asked if she had ever filed a claim with VA. Thus, the Board remanded the Veteran's claim in May 2020 for the RO as to contact the Reno, Las Vegas, and Muskogee ROs and ask that they conduct a search of their facilities for all paper files, to include, but not limited to, education files, and to obtain as many details as possible concerning the claim submitted by the Veteran on February 28, 2012. However, responses were received from Muskogee and Reno/Las Vegas Regional Offices in December 2020 and February 2021, respectively, and both ROs indicated that they had no files related to this Veteran. The earliest documented interaction with the Veteran and VA after her military service remains a March 12, 2014 "New Patient Screening" via telephone with the Kansas City VA Medical Center. The Board notes that this encounter contains an "X" next to an entry that indicates that the Veteran was "New to VA system." There is also no other telephone encounter of record prior to this date, to include her purported communication with VA regarding what progress had been made on her claim, as she asserted during her Board hearing. As a final matter, the Board also acknowledges that the Veteran asserts a history of these disabilities prior to the effective dates assigned. In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b) (2014). The date of a VA medical record will be accepted as the date of receipt of a claim when such record relates to examination or treatment of a disability for which service-connection has previously been established. Id. Simply put, this section only applies to claims for an increased rating. Here, however, even if medical records related to these disabilities were associated with the claim prior to July 22, 2015, such records cannot constitute an informal claim under 38 C.F.R. § 3.155, because treatment records alone do not indicate an intent to apply for service connection benefits. 38 C.F.R. § 3.155(a). Although 38 C.F.R. § 3.157(a) provided for a report of examination or hospitalization by VA to be accepted as an informal claim for benefits (without any indication of intent to apply for benefits) in certain instances, this only applied to claims for an increase. Based on the foregoing, the evidence is against a finding that the Veteran filed a service connection claim, formal or informal, prior to July 22, 2015. Accordingly, the Board concludes that July 22, 2014 is the proper effective date for the grants of service connection for an adjustment disorder with mixed anxiety and depressed mood and residuals of a tailbone injury, and the claims for earlier effective dates must be denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.