Citation Nr: 21030674 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-06 665 DATE: May 19, 2021 ORDER An effective date of February 9, 1995, but no earlier, for the award of service connection for generalized anxiety disorder (GAD) with obsessive compulsive disorder (OCD), is granted. FINDINGS OF FACT 1. The earliest date a claim for service connection for anxiety was filed is June 16, 1995. Moreover, this formal claim was filed within one year of the date of the Veteran's separation from service (February 8, 1995). 2. The earliest date of entitlement for service connection for anxiety is the day after the Veteran's separation from service February 9, 1995. 3. New and material evidence in the form of VA treatment records were "constructively received" by VA within one year of a December 1995 rating decision that denied service connection for anxiety. This rating decision would otherwise have been final on the service connection issue, but for the receipt of this new and material evidence. 4. The original June 16, 1995 formal claim for service connection for anxiety is an open and pending claim as a result of the new and material evidence constructively received within one year of the now nonfinal December 1995 rating decision. CONCLUSION OF LAW The requirements have been met for an earlier effective date of February 9, 1995, but no earlier, for the award of service connection for generalized anxiety disorder (GAD) with obsessive compulsive disorder (OCD). 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.156(b), 3.160, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from September 1990 to February 1995 in the U.S. Army. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In November 2020, the Veteran presented testimony at a Board virtual tele-hearing before the undersigned Veterans Law Judge (VLJ). The transcript of this hearing is associated with the claims file. The Board is cognizant the Veteran recently filed a January 2020 motion for clear and unmistakable error (CUE) in the earliest December 1995 rating decision that denied service connection for GAD with OCD. See 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. This motion for CUE was alleged with the requisite specificity on a January 2020 Application for Compensation (VA Form 21-526EZ). See Simmons v. Principi, 17 Vet. App. 104, 114 (2003). Moreover, it was correctly submitted on the application form prescribed by the Secretary. See 38 C.F.R. §§ 3.1(p), 3.155(d), 3.160 (2020). See 79 Fed. Reg. 57660 (Sept. 25, 2014). In fact, in a February 2020 attorney letter, the Veteran's attorney confirmed the January 2020 CUE motion was "separate" from the current earlier effective date issue on appeal. See also November 2020 Board virtual tele-hearing testimony. Therefore, the CUE issue is referred to the AOJ for the appropriate consideration and handling in the first instance. See 38 C.F.R. § 20.904(b) (2020) (formerly 38 C.F.R. § 19.9(b) (2018); see also Young v. Shinseki, 25 Vet. App. 201, 203-04 (2012) (determining that referral of a matter is appropriate only when the Board lacks jurisdiction over the matter being referred). Regardless, both the AOJ and the Veteran's attorney are advised that any assertion of CUE by the Veteran is likely rendered moot, because the Board in the present decision is granting in full the earliest possible effective date for service connection available by law and sought by the Veteran. EARLIER EFFECTIVE DATE (EED) Service treatment records (STRs) dated from 1990 to 1995 reveal the Veteran was treated and hospitalized on multiple occasions for self-induced nausea and vomiting. The assessment per a December 26, 1994 STR progress note (at a VA facility) was intermittent anxiety and inappropriate coping reacting, with a recommendation for the Veteran to seek psychotherapy. Other STRs dated from 1993 to 1995 document alcohol dependence and abuse with nausea and vomiting due to "psychogenic causes." On February 8, 1995, the Veteran was separated from active duty. In a June 16, 1995 Application for Compensation (VA Form 21-526), within one year of separation, the Veteran submitted a formal claim for service connection for "anxiety." At a November 1995 VA mental disorder examination by a VA psychiatrist, while noting that the Veteran had "no sign of mental disorders," rendered a diagnosis of generalized anxiety disorder (GAD). In a December 1995 rating decision, the AOJ denied the Veteran's claim for service connection for anxiety noting that the November 1995 examination found no sign of any mental disorder. The Veteran did not appeal this rating decision. While the Veteran did not file a notice of disagreement with the December 1995 rating decision, in 1996 VA inpatient and outpatient treatment records, within one year of the December 1995 rating decision were associated with the claims folders. These records show the Veteran was treated and at times hospitalized on an inpatient basis for continuing self-induced nausea and vomiting. He engaged in obsessive showering. He was diagnosed with generalized anxiety disorder (GAD) and obsessive compulsive disorder (OCD). He received psychotropic medication and drug and alcohol counseling. From 1997 to 1999, VA inpatient and outpatient treatment records continued to reveal self-induced nausea and vomiting and frequent showering with diagnoses of GAD, OCD, depression, and drug and alcohol abuse, among others. In March 1999, the Veteran filed an informal claim to reopen service connection for an anxiety disorder. In a July 1999 rating decision, the AOJ denied reopening the Veteran's claim for service connection for an anxiety disorder, on the basis that no new and material evidence was submitted. The Veteran did not appeal this rating decision. In 1999 and 2000 VA inpatient and outpatient treatment records, within one year of the July 1999 rating decision, the Veteran continued to be treated and hospitalized for self-induced nausea and vomiting. He continued to shower frequently. He was diagnosed with GAD, OCD, depression, and drug and alcohol abuse, among others. He received psychotropic medications (Serzone and Risperidone) and drug and alcohol counseling. At times he was noted to be homeless. On September 30, 2015, over 15 years later, the Veteran filed an Intent to File a Claim for Compensation (VA Form 21-0966). In an October 9, 2015 Application for Compensation (VA Form 21-526EZ), the Veteran submitted a formal claim for service connection for anxiety / a mental health condition. In the October 2017 rating decision on appeal, the AOJ reopened the Veteran's claim for service connection. In the same rating decision, the AOJ granted service connection for the underlying disability (GAD with OCD). The AOJ assigned an effective date of September 30, 2015, which was the date of receipt of his Intent to File a Claim for Compensation (VA Form 21-0966). This was because within one year of the filing of the September 30, 2015 Intent to File a Claim, the Veteran timely submitted the appropriate application form for the claim to reopen an October 9, 2015 Application for Compensation (VA Form 21-526EZ). See 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.155(b), 3.400(q)(2), 3.400(r). The grant of service connection was based on the Veteran's STRs, VA inpatient and outpatient treatment records, and the favorable findings for a nexus to service by a January 2017 private psychological examiner and an August 2017 psychological examiner. In a November NOD (VA Form 21-0958), the Veteran appealed the effective date assigned for the grant of service connection for his GAD with OCD. The appeal eventually reached the Board. The Veteran contends that the current effective date assigned for the grant of service connection for his GAD with OCD (September 30, 2015), is incorrect. The Veteran seeks an earlier effective date back 20 years to February 9, 1995, which is the day after his separation from service. His basis for an earlier effective date is that under the provisions of 38 C.F.R. § 3.156(b), VA was in "constructive possession" of relevant VA inpatient and outpatient treatment records within one year of the otherwise final December 1995 and July 1999 rating decisions that denied service connection for anxiety. That is, within one year of both ratings decisions, VA inpatient and outpatient treatment records dated from 1996 to 2000 document the Veteran was suffering from anxiety and compulsive behaviors such as showering and vomiting. These are the same behaviors he was suffering from while he was in service according to STRs dated from 1993 to 1995. These VA treatment records were in VA's constructive possession and were new and material in that they were extremely relevant to the appeal. Thus, the December 1995 and July 1999 rating decisions were not final due to the AOJ's failure to review these VA treatment records and readjudicate the claim, despite having constructive possession of these VA treatment records. It follows that the original June 16, 1995 claim for service connection for anxiety remained open and pending at the time service connection was finally granted by the AOJ in the October 2017 rating decision. The Veteran therefore maintains the effective date award for his GAD with OCD should be retroactive to the day after separation from service - that being February 9, 1995. In this regard, he filed his original June 16, 1995 claim for service connection for anxiety, which was open and pending, within one year of his separation from service in February 1995. See November 2020 Board virtual tele-hearing; November 2017 NOD (VA Form 21-0958) with accompanying statements; and August 2017 Veteran statement. At the outset, the Board is mindful that effective March 24, 2015, VA updated the regulations concerning the filing of claims, adopting a standardized claims system. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57660 (Sept. 25, 2014). The purpose of these amendments was to improve the quality and timeliness of the processing of veterans' claims for benefits by standardizing the claims and appeals processes through the use of specific VA forms. VA deleted former 38 C.F.R. § 3.157, which allowed for reports of examination or hospitalization to be treated as claims under certain circumstances, and completely rewrote 38 C.F.R. § 3.155, removing the provisions which allowed for the filing of informal claims. A complete claim on an application form is now required for all types of claims. 38 C.F.R. § 3.155(d). As such, it is only appropriate to refer to a communication dated on or after March 24, 2015 as a "claim" if the communication has been received on an application form prescribed by the Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155, 3.160 (effective March 24, 2015). However, the above amendments only apply to claims filed on or after March 24, 2015. In the present case, the Board will be focusing on the June 1995 and March 1999 claims for service connection for anxiety filed prior to the March 24, 2015 changes in the law for the filing of a claim. Thus, the amended regulations, effective beginning March 24, 2015, pertaining to the requirement of formal claims on the proper VA prescribed form, do not apply here when looking at the evidence of record during this earlier time frame. Instead, the Board will examine whether the Veteran filed any formal or informal claim for his anxiety disorder prior to March 24, 2015. Therefore, the former version of the applicable VA regulations pertaining to claims applies for this time period, allowing for informal claims and allowing for reports of examination or hospitalization to be treated as claims, under certain circumstances. See e.g., 38 C.F.R. §§ 3.1 (p), 3.151, 3.155, 3.157 (2014). 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. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). 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 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The effective date based on the submission of new and material evidence (NME) received after a final disallowance is the date of the receipt of the new, reopened claim. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed"). In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. Under the legacy appeal provisions of 38 U.S.C. § 7105(a), an appeal to the Board after an initial AOJ decision must be initiated by a NOD and completed by a Substantive Appeal (VA Form 9 or equivalent) after a SOC is furnished to the claimant. In essence, the following sequence is required: there must be a rating decision by the AOJ, the claimant must express timely disagreement with the decision (a NOD), VA must respond by explaining the basis of the decision to the claimant (a SOC), and finally the claimant, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely-filed Substantive Appeal (VA Form 9 or equivalent). See 38 C.F.R. §§ 3.103, 20.200, 20.201, 20.202, 20.302 (2018). Proper completion and filing of a Substantive Appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202. Subsequently, certification of issues on appeal to the Board by the AOJ by way of a VA Form 8 (Certification of Appeal) should occur for administrative purposes. See 38 C.F.R. § 19.35. With regard to finality, under the previous legacy system for claims not subject to the modernized review system, an AOJ decision becomes final unless an NOD is filed or new and material evidence is received within the one-year appeal period. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Stated another way, under the previous legacy system, a "finally adjudicated claim" is a claim that is adjudicated by the VA as either allowed or disallowed when whichever of the following occurs first: (i) the expiration of the one year period in which to file a NOD, pursuant to the provisions of §19.52(a) or §20.502(a) of this chapter, as applicable; or (ii) disposition on appellate review. 38 C.F.R. § 3.160(d)(1). In other words, a rating action becomes "final" by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest. Id. In this regard, the Court has also confirmed an AOJ decision becomes final "only after the period for appeal has run." Jennings v. Mansfield, 509 F.3d. 1362, 1368 (Fed. Cir. 2007). However, if VA fails to act on an NOD appeal by issuing a SOC, or if VA fails to act on new and material evidence received under § 3.156(b) by readjudicating the claim, the claim remains pending. See 38 C.F.R. § 3.160(c) (a pending claim is an application, formal or informal, which has not been finally adjudicated); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009). The pending claims doctrine provides that a claim remains pending in the adjudication process-even for years-if VA fails to act on it. Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007); Norris v. West, 12 Vet. App. 413, 422 (1999). The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram, 21 Vet. App. at 249-255 (2007). See also Myers v. Principi, 16 Vet. App. 228, 236 (2002) (since VA failed to issue SOC after valid NOD was filed, the original claim was still pending and is relevant to determining the effective date of a service connection award); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability). A final, binding decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. §§ 3.104(b), 3.105(a). But at the outset, the issue of CUE in a prior AOJ or Board decision on the issue of service connection for anxiety is not before the Board at this time, as explained in the introduction of the present Board decision. 38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C. § 5107(b). Upon review of the evidence, the Board finds that an earlier effective date of February 9, 1995, but not earlier, is granted for the award of service connection for GAD with OCD. With regard to the date of claim, the Board has considered that originally, in a June 16, 1995 Application for Compensation (VA Form 21-526), the Veteran filed a formal claim for service connection for an anxiety disability. And in March 1999, the Veteran subsequently filed an informal claim to reopen service connection for an anxiety disorder. On both occasions, in a December 1995 rating decision and in a July 1999 rating decision, the AOJ denied the Veteran service connection for anxiety and then denied the Veteran's claim to reopen service connection for anxiety. On this issue, a claimant or his or her representative must file a NOD with a determination of the AOJ within one year from the date that the AOJ mailed notice of the determination. See 38 U.S.C. § 7105(b)-(c); 38 C.F.R. §§ 3.160(d), 20.302(a). The Veteran was notified of the December 1995 rating decision denying service connection for anxiety and of the July 1999 rating decision denying the claim to reopen, and of his appellate rights. Yet he did not submit a NOD within one year of the notice of either decision. Therefore, at this point in the analysis, both the December 1995 and July 1999 rating decisions became final for the issue of service connection for an anxiety disorder. See 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.156(a), 3.160(d), 20.200, 20.201, 20.202, 20.300, 20.302, 20.1103. However, within one year of the original December 1995 rating decision, according to 1996 VA inpatient and outpatient treatment records, the Veteran was treated and at times hospitalized on an inpatient basis for continuing self-induced nausea and vomiting. He engaged in obsessive showering. He was diagnosed with generalized anxiety disorder (GAD) and obsessive compulsive disorder (OCD) throughout the 1996 VA treatment records. He received psychotropic medication and drug and alcohol counseling in 1996. Although the AOJ the did not address the existence of these VA treatment records after the December 1995 rating decision, they are still deemed to be in VA's constructive possession. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). That is, per the Bell rule, the Federal Circuit Court recently held that VA medical records created within the appeal period following a decision of the AOJ or before the decision of the AOJ are "constructively received" for the purposes of 38 C.F.R. § 3.156(b), regardless of whether the VA adjudicator had actual knowledge of their existence. Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020). Evidence is constructively received by a VA adjudicator when it is (1) generated by or submitted to VA and (2) can "reasonably be expected to be connected" to the veteran's claim. Id. In this regard, a veteran's own VA-generated medical records are in essence "always" reasonably related to that veteran's claim. Neither a veteran, nor anyone else, need take affirmative action for the veteran's own VA-generated medical records to become part of the record. Id. There is no legal basis for adding a requirement that a VA adjudicator have actual knowledge of VA medical records to establish constructive receipt of same. Id. Furthermore, more recently, the Federal Circuit clarified that constructive possession requires that the VA medical evidence be "relevant" and "reasonably connected" to the claim; it does not require that the VA medical evidence be specific to the claimant or have a "direct" relationship to the claim. See Euzebio v. Wilkie, 31 Vet. App. 394 (2019), vacated by Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). Under the provisions of 38 C.F.R. § 3.156(b), new and material evidence (as defined in 38 C.F.R. § 3.156(a)) that is received prior to the expiration of the applicable appellate period (one year for a rating decision and 60 days for a SOC), will be considered to have been submitted in connection with the claim which was pending at the beginning of the appeal period. As to finality, when new and material evidence is received before the end of an appeal period for an AOJ decision under § 3.156(b), that decision does not become final. Any later decision, based on the newly received evidence, will relate back to the original date of claim. Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). That is, when 38 C.F.R. § 3.156(b) applies, and the newly received evidence ultimately results in the grant of the benefit sought, the effective date will be the original date of claim, as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). Therefore, VA must evaluate submissions received during the one-year appeal period after a rating decision and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). If this evidence is determined to be new and material, VA must re-adjudicate the claim in a supplemental decision that is directly responsive to the evidence that was submitted. Mitchell v. McDonald, 27 Vet. App. 431, 436 (2015). If the claim is not readjudicated in light of the new and material evidence, the claim remains pending until such re-adjudication occurs. See Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). In the present case, in light of the above, the Board has determined that the 1996 VA treatment records were constructively received by the VA. Bell, 2 Vet. App. at 613. The next step is for the Board to determine whether the constructively received 1996 VA treatment records constitute new and material evidence (NME), and adjudicate the effective date issue as appropriate from that point. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C. § 5108; see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). According to the standard in effect before August 29, 2001, "new and material evidence" means evidence not previously submitted to agency decision makers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (in effect prior to August 29, 2001). The Board concludes that new and material evidence within the meaning of the earlier version of 38 C.F.R. § 3.156(a) was received by way of the 1996 VA treatment records, within one year of the December 1995 rating decision that denied service connection for an anxiety disorder. Presuming the credibility of this VA medical evidence, it was new, bore directly and substantially upon the anxiety service connection claim, and was so significant that it must be considered with all the evidence of record in order to fairly adjudicate this claim. In particular, the VA treatment records dated in 1996 continued to confirm the Veteran's earlier in-service diagnosis of any anxiety disorder and OCD. In other words, he continued to suffer from the same in-service psychiatric symptomatology. This demonstrated the existence of a "chronic" anxiety disorder with OCD since service. Thus, the 1996 VA treatment records were new and material for the issue of service connection for anxiety. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a) (as in effect prior to August 29, 2001). The Board acknowledges that subsequently, in a July 1999 rating decision, the AOJ denied reopening the Veteran's claim for service connection for an anxiety disorder, on the basis that no new and material evidence was submitted. The Veteran did not appeal this rating decision. However, within one year of the July 1999 rating decision, the Veteran continued to receive VA inpatient and outpatient treatment for his mental health problems in 1999 and 2000. Although these relevant VA treatment records were not associated with the claims file at that time, the AOJ is deemed to have been in constructive receipt of these VA treatment records. See 38 C.F.R. § 3.156(b); Bell, 2 Vet. App. at 613. Moreover, the Court has held that VA is required to provide a "directly responsive" determination as to whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. Mitchell v. McDonald, 27 Vet. App. 431, 437 (2015). If VA does not make the necessary determination, the underlying claim remains pending. Id. at 437-38. Specifically, this new evidence must be either (1) listed in the evidence section of the VA decision or (2) directly mentioned and considered in the body of the decision. Id. at 436. If VA re-adjudicates the claim but does not specifically address the new evidence in the re-adjudication, the claim remains pending, despite that intervening re-adjudication. See Beraud v. McDonald, 766 F.3d 1402, 1405-07 (Fed. Cir. 2014). Stated another way, the claim remains pending until an adequate re-adjudication occurs with direct consideration of the new evidence. Id. at 1407. The pending claim exception applies equally to unfavorable and favorable decisions. Id. at 1405-06. In sum, the Beraud case creates an exception where a veteran can have notice that a benefit was denied and an opportunity to appeal and yet a claim still remains pending. Applying this caselaw to the facts of the instant case, the AOJ in the July 1999 rating decision failed to list or directly mention or consider the existence of all relevant VA treatment records dated from 1996 to 1999. That is, from 1996 to 1999, VA inpatient and outpatient treatment records continued to reveal self-induced nausea and vomiting and frequent showering with diagnoses of GAD, OCD, depression, and drug and alcohol abuse, among others, for the Veteran. It appears the AOJ was unaware of the existence of literally 100s of pages of extremely pertinent VA treatment records for the Veteran dated from 1996 to 1999. It also appears the AOJ did not attempt to secure the Veteran's continuing inpatient and outpatient treatment at multiple VA facilities for his psychiatric problems from 1996 to 1999. Thus, the original June 16, 1995 claim for service connection for anxiety remains open and pending and nonfinal, since the AOJ in the July 1999 rating decision that readjudicated the claim failed to directly mention or address the Veteran's pertinent VA treatment records dated from 1996 to 1999. 38 C.F.R. §§ 3.156(b), 3.400(q)(1); Beraud, 766 F.3d at 1405-07. The June 16, 1995 claim is the earliest, original formal claim for service connection for anxiety. 38 C.F.R. §§ 3.1(p), 3.155(a); LaLonde, 12 Vet. App. at 382. That is, it shows (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). Moreover, this June 16, 1995 claim would be a formal, open, pending claim, part of the current claim stream, since it was not finally adjudicated on the issue of service connection for an anxiety disorder until the AOJ issued the October 2017 rating decision on appeal. See 38 C.F.R. § 3.160(c); Myers v. Principi, 16 Vet. App. 228, 236 (2002). In short, the earliest date of claim for an anxiety disorder in the present case is June 16, 1995, the date of the Veteran's Application for Compensation (VA Form 21-526). Thus, the proper date of claim is the June 16, 1995 date of receipt of the claim for service connection for anxiety. In fact, the Veteran and his attorney have specifically identified this date as the earliest date of claim. And as will be discussed further below, this claim was filed within one year of his February 1995 separation from service. With regard to the date of entitlement for GAD with OCD, the term "date entitlement arose" is not defined in the current statute or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the AOJ receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. It is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis. DeLisio, 25 Vet. App. at 56. With regard to the earliest date of entitlement, the first probative evidence of an anxiety disorder with OCD in the claims file is the Veteran's STRs dated from 1993 to 1995. In particular, his STRs reveal the Veteran was treated and hospitalized on multiple occasions for self-induced nausea and vomiting. The assessment per a December 26, 1994 STR progress note (at a VA facility) was intermittent anxiety and inappropriate coping reacting, with a recommendation to seek psychotherapy. Other STRs from 1993 to 1995 document alcohol dependence and abuse with nausea and vomiting due to "psychogenic causes." Thus, it is clearly shown by this STR medical evidence that the Veteran's anxiety and OCD symptoms have been present during his military service since at least 1993. As such, arguably, the criteria for entitlement to service connection for GAD with OCD were met as early February 9, 1995, the first day after separation from service. See 38 C.F.R. § 3.303(a)-(b). If a claim for disability compensation is received within one year after separation from service (such as the case here with the June 16, 1995 claim), the proper effective date is the day following separation or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Here, the date following separation from service (February 9, 1995) and the date entitlement arose for service connection for anxiety (February 9, 1995) are the exact same day. Accordingly, the Board concludes that February 9, 1995, the day after separation from service, is the proper effective date for the award of service connection for GAD with OCD. 38 U.S.C. § 5107(b). (This is earliest effective date available by law for his anxiety disorder, which is the day following separation from service. See 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). See Sabonis v. Brown, 6 Vet. App. 426 (1994) (holding that, where the law is dispositive, the claim must be denied due to an absence of legal entitlement). Hence, there is no conceivable earlier effective date available for the anxiety disorder award other than the day after separation from service (February 9, 1995)). On a side note, the Board acknowledges that the Veteran's attorney at the November 2020 Board virtual tele-hearing argued that an earlier effective date could also be granted here based on additional STR being associated with the claims file under the provisions of 38 C.F.R. § 3.156(c). In this regard, 38 C.F.R. § 3.156(c)(1) provides that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). In accordance with the above provision, new and material evidence is not needed to reopen a previously denied claim when relevant STRs and / or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. However, in the present case, the AOJ in the earlier December 1995 rating decision listed that he reviewed STRs dated from August 1990 to February 1995. It is not established in the record that the AOJ did not have access to all of the Veteran's STRs at the time of the December 1995 rating decision. In any event, since the Veteran has already been granted the earliest effective date available by law in the present case, an analysis of the earlier effective date issue under 38 C.F.R. § 3.156(c) would be a moot point. Therefore, it requires no further discussion. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.