Citation Nr: 23038293 Decision Date: 07/11/23 Archive Date: 07/11/23 DOCKET NO. 19-35 983 DATE: July 11, 2023 ORDER Entitlement to an effective date prior to May 12, 2017 for the grant of service connection for posttraumatic stress disorder (PTSD) with schizoaffective disorder and cannabis use disorder moderate to severe is denied. FINDINGS OF FACT 1. The Veteran's initial claim for entitlement to an acquired psychiatric disability (depression/PTSD) was received by VA on January 9, 2003. 2. The Veteran had no communication with VA prior to January 9, 2003 for the issue of entitlement to service connection for an acquired psychiatric disability that could be reasonably construed as a claim of entitlement to benefits. 3. The Veteran's claim for entitlement to service connection for an acquired psychiatric disability (depression/PTSD) was denied in the May 2003 rating decision and became final in May 2004 after the Veteran did not appeal the decision. 4. The Veteran's second claim for entitlement to an acquired psychiatric disability (personality disorder) was received by VA on June 14, 2006. 5. The Veteran had no communication with VA from May 2003 until June 14, 2006 on the issue of entitlement to service connection for an acquired psychiatric disability that could be reasonably construed as a claim of entitlement to benefits. 6. The Veteran's claim for entitlement to service connection for an acquired psychiatric disability (personality disorder) was denied in the October 2006 rating decision and became final in October 2007 after the Veteran did not appeal the decision. 7. The Veteran's third claim for entitlement to service connection for an acquired psychiatric disability (PTSD and to reopen the previously denied claim for entitlement to service connection for a personality disorder) was received by VA on March 2, 2015. 8. The Veteran had no communication with VA from October 2006 until March 2, 2015 on the issue of entitlement to service connection for an acquired psychiatric disability that could be reasonably construed as a claim of entitlement to benefits. 9. The Veteran's claim for entitlement to service connection for an acquired psychiatric disability (PTSD and to reopen the previously denied claim for entitlement to service connection for a personality disorder) was denied in the September 2015 rating decision. The Veteran timely filed a Notice of Disagreement with the September 2015 rating decision in November 2015. In December 2016, the Regional Office issued a Statement of the Case affirming the October 2015 rating decision. The Veteran did not perfect her appeal and the October 2015 rating decision became final in February 2017, 60 days following the issuance of the Statement of the Case. 10. The Veteran's fourth claim for entitlement to an acquired psychiatric disability (PTSD due to military sexual trauma and bipolar personality disorder) was received by VA on May 12, 2017. The Veteran's claim was subsequently granted with an effective date of the claim's receipt by VA, May 12, 2017. 11. The Veteran had no communication with VA prior to May 12, 2017 that was not previously adjudicated and final for the issue of entitlement to service connection for an acquired psychiatric disability that could be reasonably construed as a claim of entitlement to benefits. CONCLUSION OF LAW The criteria for an effective date prior to May 12, 2017 for entitlement to service connection for PTSD with schizoaffective disorder and cannabis use disorder moderate to severe have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1989 until her honorable discharge in September 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision by the Regional Office of the United States Department of Veterans Affairs (VA). Effective Date Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on 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. Under 38 U.S.C. § 5110(a), the effective date of an increase in a Veteran's disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(b)(2) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." Thus, "the plain language of [section] 5110(b)(2)...only permits an earlier effective date for an increased disability compensation if that disability increased during the one-year period before the filing of the claim." Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date 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 v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (p). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (r). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155. Entitlement to an effective date prior to May 12, 2017 for the grant of service connection for PTSD with schizoaffective disorder and cannabis use disorder moderate to severe is denied. The Veteran asserts that she is entitled to an effective date prior to May 12, 2017 for entitlement to service connection for PTSD with schizoaffective disorder and cannabis use disorder moderate to severe. The question for the Board is whether VA received an informal or formal claim for compensation for this disability prior to May 12, 2017, that was not previously adjudicated and final. The Board concludes that, although the Veteran had an acquired psychiatric disability prior to May 12, 2017, VA did not receive a claim for entitlement to service connection for an acquired psychiatric disability prior to May 12, 2017 that was not previously adjudicated and final, and that the effective date of the award for compensation based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). In this case, VA received an original claim of entitlement to service connection for depression/PTSD on January 9, 2003. See January 2003 VA Form 21-526 (Veteran's Application for Compensation or Pension). This claim was denied in the May 2003 rating decision. See May 2003 rating decision; see also May 2003 Notification. The Veteran did not appeal this decision, and it became final in May 2004. Subsequently, VA received an original claim of entitlement to service connection for a personality disorder on June 14, 2006. See VA Form 21-526 (Veteran's Application for Compensation or Pension). This claim was denied in the October 2006 rating decision. See October 2006 rating decision; see also October 2006 Notification. The Veteran did not appeal this decision, and it became final in October 2007. The Board notes that in November 2006, the Veteran timely filed an informal notice of disagreement for her claims of entitlement to service connection for residuals of shingles and entitlement to service connection for a skin disability. See November 2006 VA Form 21-4138 (Statement in Support of Claim). However, the Veteran did not include her claim for entitlement to service connection for a personality disorder. Id. Subsequently, VA received an original claim of entitlement to service connection for PTSD, entitlement to a total disability rating based on individual unemployability (TDIU), and to reopen the previously denied claim for entitlement to service connection for a personality disorder on March 2, 2015. See March 2015 VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits). This claim was denied in the September 2015 rating decision. See September 2015 rating decision; see also October 2015 Notification. The Veteran timely filed a Notice of Disagreement with the September 2015 rating decision in November 2015. See November 2015 VA Form 21-0958 (Notice of Disagreement). In December 2016, the Regional Office issued a Statement of the Case affirming the October 2015 rating decision. The Veteran did not perfect her appeal and the October 2015 rating decision became final in February 2017, 60 days following the issuance of the Statement of the Case. Subsequently, VA received an original claim of entitlement to an increased disability rating for PTSD due to military sexual trauma and bipolar personality disorder on May 12, 2017. See May 2017 VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits). The Regional Office subsequently granted that claim with an effective date of the claim's receipt by VA, May 12, 2017. As noted above, prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(p). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). As noted above, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155. In the present case, there were no informal nor formal claims previously filed that were not previously adjudicated and final. Having carefully reviewed the evidence of record, the Board finds no basis upon which to assign an effective date earlier than May 12, 2017, for the grant of service connection for an acquired psychiatric disability, to include PTSD with schizoaffective disorder and cannabis use disorder moderate to severe. There is no communication prior to May 12, 2017 that was not previously adjudicated and final, that could be reasonably construed as a claim of entitlement to benefits. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a Veteran suffers from a disability does not establish intent on the part of the Veteran to seek connection for that disability. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Although the Board accepts that the Veteran had an acquired psychiatric disability prior to the date of receipt of her most recent application for VA compensation in May 2017, the law dictates that the effective date of service connection is the date of the receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Therefore, the effective date for the grant of service connection for PTSD with schizoaffective disorder and cannabis use disorder moderate to severe is appropriately May 12, 2017, for the Veteran's acquired psychiatric disability, and no earlier. (CONTINUED ON THE NEXT PAGE) Accordingly, the claim for an earlier effective date is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). G. William Riggs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, 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.