Citation Nr: 22015508 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 19-18 005 DATE: March 17, 2022 ORDER An effective date prior to January 16, 2018, for the award of service connection for panic disorder with generalized anxiety, obsessive-compulsive disorder, unspecified depressive disorder, and alcohol use disorder (hereinafter, psychiatric disorder) is denied. An effective date prior to January 16, 2018, for the award of a 30 percent rating for asthma is denied. FINDINGS OF FACT 1. In a March 2016 rating decision, a Department of Veterans' Affairs (VA) Regional Office (RO) granted service connection and a 0 (zero) percent (noncompensable) rating for asthma, effective August 12, 2015, and denied service connection for a psychiatric disorder; he was advised of the RO's decision and of his appellate rights. 2. The Veteran appealed the March 2016 rating decision by submitting a timely notice of disagreement (NOD) in March 2017; the RO issued a statement of case (SOC) in August 2017, advising the Veteran of the time within which he needed to file a substantive appeal in order to perfect his appeal. 3. The Veteran did not perfect his appeal by filing a timely substantive appeal after issuance of the August 2017 SOC; as such, the RO closed the appeal. 4. VA received the Veteran's application for an increased rating for asthma and reopening of the previously denied claim for service connection for a psychiatric disorder on January 16, 2018. 5. It is not factually ascertainable that the Veteran's asthma increased in severity during the one-year period prior to January 16, 2018, so as to warrant the assignment of a 30 percent rating during all or any portion of that one-year period. CONCLUSIONS OF LAW 1. The criteria for the assignment of an effective date prior to January 16, 2018, for the award of service connection for a psychiatric disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. 2. The criteria for the assignment of an effective date prior to January 16, 2018 for the award of a 30 percent disability rating for asthma have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400, 4.3, 4.97, Diagnostic Code (DC) 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1990 to January 1994. His decorations include the National Defense Service Medal, the Air Force Achievement Medal, and the Air Force Longevity Service Award. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision issued by a VARO. In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 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; 38 C.F.R. § 3.400. A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160(e). The effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2). The effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Thus, three possible effective dates may be assigned depending on the facts of an increased rating case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or, (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). See Gaston, 605 F.3d at 982-84; Harper v. Brown, 10 Vet. App. 125, 126 (1997). Prior to March 24, 2015, a "claim" was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). 1. An effective date prior to January 16, 2018, for the award of service connection for a psychiatric disorder is denied. 2. An effective date prior to January 16, 2018, for the award of a 30 percent rating for asthma is denied. The Veteran seeks an effective date prior to January 16, 2018 for the award of service connection for a psychiatric disability and a 30 percent rating for asthma. In the present case, a March 2016 rating decision granted service connection and a 0 percent rating for asthma, effective August 12, 2015, and denied service connection for a psychiatric disorder. The Veteran initiated an appeal of the March 2016 rating decision by filing a NOD in March 2017. In pertinent part, the Veteran expressed disagreement with the assignment of a 0 percent rating for asthma and the denial of service connection for a psychiatric disorder. In August 2017, the RO issued a SOC advising the Veteran, among other things, of the time within which he needed to file a substantive appeal in order to perfect his appeal. Thereafter, however, he did not perfect his appeal by filing a timely substantive appeal. As a result, the RO closed the appeal, and the March 2016 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.1103 (2015). In December 2017, the Veteran submitted new evidence pertaining to the issues of entitlement to a compensable rating for asthma and service connection for a psychiatric disorder. In response to a January 5, 2018 VA notice letter, the Veteran submitted a January 16, 2018 VA Form 21-526EZ in which he requested an increased rating for asthma, as well as service connection for a psychiatric disorder. The April 2018 rating decision currently on appeal assigned a higher, 30 percent rating for asthma and awarded service connection for a psychiatric disorder, effective January 16, 2018 (the date of claim). The Veteran asserts that an effective date prior to January 16, 2018, for the 30 percent rating for asthma and for service connection for a psychiatric disability is warranted because he did not receive a copy of the August 2017 SOC and, therefore, was deprived of his opportunity to file a timely substantive appeal. In this regard, the Board notes that the United States Court of Appeals for Veterans Claims has ruled that there is a presumption of regularity under which it is presumed that government officials "have properly discharged their official duties." Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). Generally, an allegation of non-receipt of mail, by itself, is insufficient to rebut the presumption of regularity. Id. Rather, a claimant bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. Clarke v. Nicholson, 21 Vet. App. 130 (2006). Once the presumption of regularity has been rebutted, the burden shifts to VA to show that regular mailing practices were followed in mailing the document in question in accordance with applicable laws and regulations, or that the claimant actually received the notice. Crain v. Principi, 17 Vet. App. 182, 186 (2003). Here, the record confirms that the August 2017 SOC was mailed to the address that matches the address the Veteran provided on several documents he sent to VA. See, e.g., March 2017 VA Form 21-0958; June 2017 Veteran correspondence. There is no evidence in the file that his address changed prior to the mailing of the SOC. Additionally, there is no evidence indicating that VA's regular mailing practices were not followed, or that the August 2017 SOC was not mailed. There is also no indication that the August 2017 SOC was returned as undeliverable. The only evidence offered to rebut the presumption of regularity is the Veteran's own statement of non-receipt. However, as noted, his statement alone cannot overcome the presumption. Therefore, the Board must find that the presumption of regularity has not been rebutted and that the Veteran is presumed to have received the August 2017 SOC. As such, because the Veteran did not perfect his appeal by filing a timely substantive appeal in response to the August 2017 SOC, the March 2016 decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103 (2015). With regard to the substantive question of the Veteran's entitlement to an effective date prior to January 16, 2018, for the award of service connection for a psychiatric disorder, the record reflects that VA received his application to reopen the previously denied claim, which was filed on a standard form prescribed by the Secretary (VA Form 21-526EZ), on January 16, 2018. In this regard, regardless of the date entitlement arose, the earliest date that an application to reopen the previously denied claim of entitlement to service connection for a psychiatric disorder was received is January 16, 2018. As such, the Board finds that an effective date prior to January 16, 2018, is not warranted. With regard to entitlement to an effective date prior to January 16, 2018, for the award of a 30 percent rating for asthma, the record likewise reflects that VA received the Veteran's increased rating claim on a standard form prescribed by the Secretary (VA Form 21-526EZ) on January 16, 2018. Because the effective date for an increased rating can be up to one year prior to the date of receipt of the claim for increased rating, the question for the Board's consideration is whether there was a factually ascertainable worsening of his asthma symptoms at any time during the one-year period prior to January 16, 2018, so as to support the assignment of a 30 percent rating during all or any portion of that one-year period. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). After reviewing the evidence of record, the Board finds that an earlier effective date for the 30 percent rating is not warranted. In short, it is not factually ascertainable that the Veteran's asthma increased in severity during the one-year period prior to January 16, 2018, so as to warrant the assignment of a 30 percent rating. The evidence of record does not demonstrate that an increase in the severity of the Veteran's asthma can be dated to any point during the one-year period prior to the date of receipt of his claim for an increased rating. He did not undergo any VA examinations during the period from January 16, 2017 to January 16, 2018, and the evidence does not otherwise suggest that an increase occurred during that time so as to first warrant the assignment of a 30 percent rating. Based on the foregoing, the Board finds that the 30 percent rating is warranted for the Veteran's service-connected asthma no earlier than January 16, 2018. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 3.400(o)(2). The Board is sympathetic to the Veteran's situation and contentions. However, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. For the reasons stated, there is no legal basis for the assignment of an effective date earlier than January 16, 2018, for the award of service connection for a psychiatric disorder or the 30 percent rating for asthma. The appeal must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.