Citation Nr: A25035572 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 211220-206866 DATE: April 17, 2025 ORDER Entitlement to an effective date earlier than January 7, 2014 for the award of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to effective date earlier than November 15, 2011, for the award of service connection for exotropia is remanded. Entitlement to an initial compensable rating for exotropia, to include whether separate ratings are warranted for blurred vision, diplopia, and lack of depth perception, is remanded. FINDING OF FACT There is no indication in the record that the Veteran filed a claim, informal or formal, of service connection for a psychiatric disorder prior to January 7, 2014 correspondence/informal claim for a psychiatric disorder. CONCLUSION OF LAW The criteria for entitlement to an effective earlier than January 7, 2014 for the award of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 5.151, 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1967 to May 1969, including service in Korea. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2021 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA), an agency of original jurisdiction (AOJ). The Veteran filed a timely notice of disagreement in December 2021 by submitting a VA Form 10182, Decision Review Request: Board Appeal, and electing the Evidence Submission option in the modernized review system, also known as the Appeals Modernization Act (AMA). Under the AMA, the Board may only consider the evidence of record at the time of the August 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. See 38 C.F.R. § 20.303. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claims of entitlement to an earlier effective date for the award of service connection for exotropia and an initial compensable rating for exotropia, to include whether separate ratings are warranted for blurred vision, diplopia, and lack of depth perception, any evidence the Board could not consider will be considered in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). In October 2022, the Board issued a decision, in relevant part, denying entitlement to an effective date earlier than November 15, 2011, for the award of service connection for exotropia, and an effective date earlier than February 5, 2018, for the award of service connection for unspecified trauma and stress-related disorder (later recharacterized as PTSD). The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a July 2024 memorandum decision, the Court vacated that part of the Board's October 2022 decision that denied entitlement to an effective date earlier than November 15, 2011, for service-connected exotropia, denied an effective date earlier than February 5, 2018, for service-connected psychiatric condition, and declined to address whether higher ratings for exotropia were warranted, to include any consideration of separate ratings for blurred vision, diplopia, and lack of depth perception. The Court remanded the matter to the Board for readjudication in light of the Court's findings. In January 2025, the Board issued a decision (under the Legacy system, Docket Number 1810876) that, in part, also adjudicated the increased rating and earlier effective date claims that the Veteran elected to have decided under the AMA via his submission of the December 2021 VA Form 10182 (subject of the Court's July 2024 memorandum decision). The Board later vacated that portion of the January 2025 decision on the basis of a denial of due process of law. See BVA Decision, 03/21/2025. However, because the January 2025 Board decision also granted an effective date of January 7, 2014, for the award of service connection for PTSD, and timeliness of a March 2004 Notice of Disagreement regarding a February 2004 rating decision, such "favorable findings" are considered binding on the Board. 38 C.F.R. § 3.104(c). Accordingly, matters now before the Board for readjudication are (as noted above): Entitlement to an effective date prior to January 7, 2014, for service-connected PTSD; entitlement to an effective date prior to November 15, 2011, for service-connected exotropia; and initial compensable rating for exotropia, to include whether separate ratings are warranted for blurred vision, diplopia, and lack of depth perception. 1. Entitlement to an effective date earlier than January 7, 2014 for the award of service connection for PTSD is denied. In general, the effective date of an award based on an original claim, or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall be 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. The effective date of an award of disability compensation based on a claim to reopen 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(a); 38 C.F.R. § 3.400(q)(ii)(r). The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. During the pendency of this appeal, VA amended it regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises and eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims. See 79 Fed. Reg. 57,696 (Sep. 25, 2014) (effective Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. Claims or appeals that were pending on that date are to be decided by the regulations as they existed prior to the amendment. Id. As the Veteran's claim was pending on March 24, 2015, the Board will apply the laws and regulations as they existed prior to the amendment in determining whether a submission constituted a claim for benefits. Id. Before this change, 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. See 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). A formal claim is one that has been filed in the form prescribed by VA. 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. Thomas v. Principi, 16 Vet. App. 197 (2002). See also 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written and must identify the benefit being sought. See Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In the present case, the Veteran contended an effective date prior to February 5, 2018, was warranted as he submitted an informal claim for compensation for such disability prior to that date. See e.g., VA Form 10182 Notice of Disagreement, Correspondence, 12/20/2021. As noted above, the Veteran's PTSD is now service connected effective from January 7, 2014. However, since a claimant is generally presumed to be seeking the maximum benefit allowed by law, receipt of an earlier effective date does not abrogate a pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the remaining question is whether VA received an informal claim for compensation for this disability prior to January 7, 2014, that was not previously adjudicated and final, thus entitling the Veteran to an even earlier effective date. Turning to the record, in correspondence received by the VA on January 7, 2014, the Veteran stated, "[w]earing dentures from the age of 22 until now has been, and continues to be a physical, emotional, and psychological burden." A May 2021 Board decision granted service connection for unspecified trauma and stressor-related disorder. An August 2021 rating decision implemented the Board's decision, assigning a 10 percent rating for unspecified trauma and stressor-related disorder effective from February 5, 2018, the date of receipt of a February 5, 2018 application for VA compensation for service connection for a mental health condition. An April 2022 rating decision recharacterized the Veteran's disability as PTSD, assigning an increased rating of 50 percent effective from February 5, 2018. In January 2025 Board decision, the Board determined that the Veteran's January 7, 2014 correspondence constituted an informal claim for service connection for a psychiatric disorder and awarded an earlier effective date for the service-connected PTSD to that date. Upon review, the evidence of record does not reflect, nor does the Veteran contend, that he filed a formal, or informal claim of service connection for a psychiatric disorder prior to the above-noted January 7, 2014 correspondence. As the VA did not receive any claim(s) of service connection for a psychiatric disorder prior to receiving the Veteran's January 7, 2014 informal claim/correspondence, the Board finds that the January 7, 2014 effective date for the award of PTSD is appropriate. REASONS FOR REMAND Under the AMA, remand is proper for correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2)?AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38?C.F.R. §?20.802(a). Although the Board regrets the delay, upon review of the claims file, the Board believes remand on the remaining claims is warranted pursuant to 38?C.F.R. §?20.802(a) for errors that occurred prior to the 2021 AOJ decision on appeal. 1. Entitlement to effective earlier than November 15, 2011, for the award of service connection for exotropia is remanded. The Veteran seeks an effective date prior to November 15, 2011, for his service-connected exotropia. In August 2003, the Veteran submitted a claim seeking to reopen a previously adjudicated claim for service connection for exotropia. A February 2004 rating decision denied the Veteran's claim on the basis that evidence submitted was not new and material. The Veteran appealed that rating decision. In the January 2025 Board decision, the Board determined that the Veteran's March 2004 Notice of Disagreement (NOD) had been timely filed. Specifically, the Board found that the March 2004 NOD regarding the February 2004 rating decision is presumed to have been timely received under the "mailbox rule," but the AOJ has not yet adjudicated the claim. Such favorable finding is binding. See 38 C.F.R. § 3.104(c). Consequently, because VA should have accepted the March 2004 NOD regarding the February 2004 rating decision as timely and adjudicated the claim accordingly, failure to do so prior to the August 2021 rating decision on appeal constituted error. 2. Entitlement to an initial compensable rating for exotropia, to include whether separate ratings are warranted for blurred vision, diplopia, and lack of depth perception is remanded. The Veteran's exotropia is service-connected and rated as noncompensable (zero percent), effective from November 15, 2011. The Veteran seeks a compensable rating for his service-connected exotropia. He further contends separate ratings are warranted for his blurred vision, diplopia (double vision), and lack of depth perception. See e.g., May 1979 VA Form 21-526; August 2003 VA Form 21-526; Correspondence, associated 01/28/2013, 01/07/2014, 04/21/2015, 01/16/2018, 04/01/2020, 12/20/2021, 01/21/2022. On VA examination for eye conditions in December 2014, the Veteran reported his past complaints included difficulty focusing out of both eyes at the same time and poor depth perception, and then double vision after an in-service surgery (bilateral lateral rectus recession in both eyes) in June 1968. The Veteran was noted to have a 20 prism diopter intermittent alternating exotropia at distance and near on exam, correctable with standard spectacle correction with additional prism correction. The VA examiner diagnosed bilateral exotropia, cataracts, presbyopia, hyperopia, and pinguecula. On VA eye conditions examination in February 2018, the Veteran reported his eye conditions began in 1968 with strabismus surgery and stayed about the same, with intermittent exophoria. The examiner indicated the Veteran had no diplopia or loss of visual field, but did have a retinal condition, mild retinopathy. The VA examiner diagnosed exophoria and retinopathy. On VA eye conditions examination in October 2020, the Veteran reported his past complaints included difficulty focusing with both eyes during time of service, and thus he had eye surgery in June 1968, after which his "eyes turn out" condition got worse, and he started to see double vision intermittently at different gazes. He reported his condition progressed/worsened since onset. The Veteran was noted to have 8-10 prism diopters constant alternating exotropia on exam, with eyes still turning out even with glasses on and ability to only focus with one eye at a time. The Veteran reported no diplopia at time of exam but has occasional diplopia when looking on the side but not consistently at a certain angle. His reduced vision in the right eye was attributed to age-related macular degeneration. The VA examiner opined that the Veteran's strabismus constant alternating exotropia causes difficulty in focusing with both eyes which in turn greatly reduces his depth perception and sometimes leads to diplopia at a certain angle of view. The examiner diagnosed constant alternating exotropia, age-related macular degeneration, and age-related nuclear cataracts. The record reflects that the Veteran consistently reported his symptomatology as including exotropia, blurred vision, diplopia, and/or lack of depth perception. However, the VA examiners either did not indicate whether any such symptom (other than exotropia) related to service, to include surgery therein, or did not find such symptoms present on exam yet failed to reconcile their absence with the Veteran's record complaints of such, or noted the symptoms as present on exam without a separate diagnosis indicated. Consequently, these examinations were inadequate for rating current severity of the Veteran's service-connected exotropia, to include whether separate ratings were warranted for his reported symptoms i.e., blurred vision, double vision, lack of depth perception. The Board notes when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the failure to provide the Veteran VA examination that fully addresses all of his symptomatology prior to the August 2021 decision on appeal, the Board finds a duty to assist error has occurred. Accordingly, remand is warranted to afford the Veteran an examination with medical opinion based on full consideration of the Veteran's documented medical history and contentions, supported by clearly stated rationale. The matters are REMANDED for the following action: 1. Accept the March 2004 NOD as timely and adjudicate the claim of an earlier effective date for the award of service connection for exotropia accordingly. 2. Schedule the Veteran for a VA eye conditions examination, with an appropriately qualified examiner, to ascertain the current severity and manifestations of his exotropia, to include blurred vision, diplopia, and lack of depth perception. The claims file, to include a copy of this remand, must be made available to the examiner for review. The examination report should reflect that such a review was accomplished. The examiner should elicit a complete history from the Veteran. All appropriate tests, studies, and consultation should be accomplished, and all clinical findings should be reported in detail. Specifically, as to any reported worsening, the examiner should provide a complete explanation as to findings, to include whether separate ratings for, i.e., blurred vision, diplopia, and/or lack of depth perception, may be appropriate. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, s/he must provide a thorough explanation for each opinion proffered. The mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinions sufficient. B. D. WATSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Picard 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.