Case A26038010

S. B. MAYS · 2026 · Case ID: A26038010

MIXED

Summary

The veteran served in the Army from January 1972 to January 1979, with subsequent service in the Georgia Army National Guard from February 1995 to May 2005. The veteran appeals the denial of entitlement to an effective date prior to December 2, 2019, for the award of service connection for an acquired psychiatric disorder. The veteran initially filed a claim for service connection for a psychiatric condition in July 2017, which was denied in October 2017. The veteran then submitted a request for reconsideration in November 2017, but provided no further information until October 2020, when a supplemental claim was filed. The Board notes that the October 2017 decision became final as no timely appeal or new and material evidence was submitted under the legacy system. The veteran was granted service connection for an acquired psychiatric disorder with a 70% rating effective September 28, 2020, in a November 2020 rating decision. The RO later revised this decision on its own motion due to Clear and Unmistakable Error (CUE), assigning an effective date of December 2, 2019. The Veteran sought an earlier effective date, but the Board found no legal basis for an effective date prior to December 2, 2019, as the original claim was denied and became final, and subsequent claims were filed after the appeal period expired. The Board denied the appeal for an earlier effective date.

Rationale

Original claim denied in October 2017 became final.; No timely appeal or new and material evidence submitted under legacy system.; Subsequent claims filed after appeal period expired.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

230327-334590

Full Decision Text

Citation Nr: A26038010
Decision Date: 04/23/26 Archive Date: 04/23/26

DOCKET NO. 230327-334590
DATE: April 23, 2026

ORDER

Entitlement to an effective date prior to December 2, 2019, for the award of service connection for major depressive disorder, insomnia disorder, and generalized anxiety disorder (an acquired psychiatric disorder) is denied.

REMANDED

The appeal seeking revision of the October 2017 rating decision that denied entitlement to service connection for a psychiatric condition is remanded.

FINDINGS OF FACT

1. In a final decision dated October 2017, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a psychiatric condition.

2. On December 2, 2019, the Veteran submitted an intent to file a claim for VA benefits.

3. After the October 2017 rating decision, the earliest communication that may be reasonably construed as seeking to readjudicate the previously denied claim of entitlement to service connection for a psychiatric condition, was the Veteran's supplemental claim that was received by VA on October 2, 2020.

CONCLUSION OF LAW

The criteria for an effective date earlier than December 2, 2019, for the award of service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 5102(b), 5110; 38 C.F.R. §§ 3.155, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran, who is the appellant in this case, served on active duty from January 1972 to January 1979 and from February 2003 to April 2005. He also served in the Georgia Army National Guard from February 1995 to May 2005, with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2023 higher level review (HLR) decision of a VA RO.

In the March 2023 VA Form 10182, the Veteran requested direct review by a Veterans Law Judge. Therefore, the Board may only consider the evidence of record at the time of the January 2022 rating decision that was subject to HLR. 38 C.F.R. § 20.301.

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in this decision. 38 C.F.R. § 20.300. If the appellant would like VA to consider any evidence that was added to the claims file that the Board could not consider, the appellant 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

By way of background, in a November 2020 rating decision, the Veteran was granted service connection for an acquired psychiatric disorder and assigned an initial rating of 70 percent, effective September 28, 2020. In October 2021, he submitted a motion seeking revision of the October 2017 rating decision that denied service connection for a psychiatric condition, alleging CUE in that decision. In January 2022, the RO denied entitlement to an effective date prior to September 28, 2020, for the award of service connection for an acquired psychiatric disorder, but did not adjudicate the October 2021 CUE motion. In November 2022, the Veteran requested HLR of the January 2022 rating decision, and alleged that an earlier effective date was warranted for the award of service connection for an acquired psychiatric disorder, based on a duty to assist error. See November 2022 VA Form 20-0996. In a January 2023 HLR decision, the RO denied entitlement to an effective date prior to September 28, 2020, for the award of service connection for an acquired psychiatric disorder, but did not adjudicate any CUE issue.

In February 2023, on its own motion, the RO found that there was CUE in November 2020 rating decision that assigned an effective date of September 28, 2020, for the award of service connection for an acquired psychiatric disorder, and revised the November 2020 rating decision to reflect the assignment of an effective date of December 2, 2019. In the March 2023 VA Form 10182, the Veteran identified the decision on appeal as the February 2023 rating decision, and in the attached brief made essentially the same arguments as in the October 2021 CUE motion, without any explicit reference to CUE. As the finding of CUE was made sua sponte, involved a non-final rating decision since the October 2021 CUE motion was treated by the RO as a request for an earlier effective date on the merits, and the Veteran specifically indicated in the March 2023 VA Form 10182 that he was disagreeing with effective date assigned for the award of service connection for an acquired psychiatric disability, the Board finds that the proper issue on appeal is entitlement to an effective date prior to December 2, 2019, for the award of service connection for an acquired psychiatric disorder. See generally Young v. Wilkie, 31 Vet. App. 51 (2019) (citing Gomez v. McDonald, 28 Vet. App. 39, 43 n.1 (2015) (observing that it would be "illogical" for a claimant to "forfeit the right to direct review of a [VA] decision in exchange for review under the much higher scrutiny of a CUE motion"). Furthermore, the Board has liberally construed the March 2023 VA Form 10182 as appealing the January 2023 HLR decision that denied entitlement to an earlier effective date on the merits, as that is a more favorable interpretation for the Veteran because it eliminates the need for the Veteran to meet the higher CUE standard. See id.; see generally Terry v. McDonough, 37 Vet. App. 1 (2023).

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).

1. Entitlement to an effective date prior to December 2, 2019, for the award of service connection for an acquired psychiatric disorder.

In this case, the Veteran is seeking an effective date of July 12, 2017, the date he first submitted a claim for service connection for an acquired psychiatric disorder, for the award of service connection for an acquired psychiatric disorder. See March 2023 VA Form 10182 and statement.

The effective date for an award of disability compensation based on an original claim for direct service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, and for reopened claims, it 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 based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C.

§ 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. 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 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.

To preserve an effective date, an intent to file a claim may be submitted to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b).

Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015, as it the case here. Id. at 57,686.

Following the March 2015 amendment, a claim for benefits must be filed on the standardized claim form prescribed by the Secretary. 38 C.F.R. §§ 3.150, 3.151.

Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). 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). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004).

The Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See?Lynch v. McDonough, 21 F.4th 776 (2021).

To qualify as an informal claim, a document must evince an intent to apply for benefits and identify the benefits sought. See Shea v. Wilke, 926 F.3d 1362, 1367 (Fed. Cir. 2019); Sellers v. Wilkie, 30 Vet. App. 157, 162 (2018); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009).

Under the Appeals Modernization Act (AMA), an appellant can preserve an effective date by continuously pursuing a claim. This is accomplished by filing an appropriate administrative review option to an AMA decision as specified in 38 C.F.R. § 3.2500(c) within one year of the issuance of the decision (or within the time specified in § 3.2500(f), as applicable to simultaneously contested claims), provided that any appeal to the Court must be accepted as timely by that court. 38 C.F.R. § 3.2500(h)(1).

As noted by the Court in Calhoun v. McDonough, 37 Vet. App. 96 (2024), a continuously
2009).

As noted by the Court in Calhoun v. McDonough, 37 Vet. App. 96 (2024), a continuously pursued claim under the AMA is not final, thus allowing for an effective date of an award as early as the date of the first claim in a continuously pursued claim.

If a claim is continuously pursued it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. §§ 3.400, 3.2500(c). The available review options to establish continuous pursuit depend on the type of decision that was issued.

If the AOJ decision is an initial or supplemental claim, an appellant may submit a (i) supplemental claim, (ii) higher-level review (HLR), or (iii) VA Form 10182, Board appeal, to continuously pursue the appeal.

In this case, the Veteran's July 2017 claim for service connection for a psychiatric condition was denied in an October 2017 rating decision. The Veteran was informed of the decision in an October 2017 letter.

In November 2017, the Veteran requested "reconsideration" of October 2017 denial of service connection for a psychiatric condition. See November 2017 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. In a November 2017 letter, the Veteran and his representative were informed that the Veteran's request for reconsideration had been received, and that no further action would be taken by the RO unless the Veteran submitted or identified new evidence related to the previously denied claim, filed an appeal of a prior decision, or identified CUE in a prior decision. The Veteran did not provide any additional information regarding an acquired psychiatric disorder until he again filed for service connection for an acquired psychiatric disorder in October 2, 2020. As the November 2017 VA Form 21-526EZ served as a request to reconsider, and the RO in the November 2017 letter provided the Veteran with an opportunity to submit further evidence, which he did not furnish, the Board finds the November 2017 VA Form 21-526EZ not to be a notice of appeal. Furthermore, in a claim in which no response has been made within one year after the request for evidence, the claimant's failure or disregard will constitute abandonment of the claim and sufficient grounds for its rejection. See 38 C.F.R. § 3.158(a); see also Morris v. Derwinski, 1 Vet. App. 260, 264 (1991). Additionally, the Veteran did not file a timely Notice of Disagreement challenging the October 2017 rating decision, nor did he submit new and material evidence under the legacy appeal system within one year of receiving notice of the October 2017 rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.202, 20.1103. Therefore, the October 2017 rating decision became final.

Thereafter, on December 2, 2019, the Veteran submitted an intent to file a claim for VA benefits. In October 2020, the Veteran submitted a claim for service connection for a mental health condition. See October 2022 VA Form 20-0995, Decision Review Request: Supplemental Claim.

In a November 2020 rating decision, the Veteran was granted service connection for an acquired psychiatric disorder and assigned an initial rating of 70 percent,
7 rating decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.202, 20.1103. Therefore, the October 2017 rating decision became final.

In a November 2020 rating decision, the Veteran was granted service connection for an acquired psychiatric disorder and assigned an initial rating of 70 percent, effective September 28, 2020. In February 2023, on its own motion, the RO found that there was CUE in November 2020 rating decision that assigned an effective date of September 28, 2020, for the award of service connection for an acquired psychiatric disorder, and revised the November 2020 rating decision to reflect the assignment of an effective date of December 2, 2019.

In January 2022, the RO denied entitlement to an earlier effective date for the award of service connection for an acquired psychiatric disorder. In November 2022, the Veteran requested HLR of the January 2022 rating decision. See November 2022 VA Form 20-0996. In a January 2023 HLR decision on appeal, the RO denied entitlement to an earlier effective date for the award of service connection for an acquired psychiatric disorder.

On review of all evidence, there is no basis under the law to support an effective date earlier than December 2, 2019, for the award of service connection for the acquired psychiatric disorder.

As explained above, the October 2017 rating that denied entitlement to service connection for a psychiatric condition became final. Thereafter, VA did not receive any new and material/relevant evidence from the Veteran regarding an acquired psychiatric disorder until October 2020, which was within one year of the December 2, 2019 intent to file. Therefore, the Veteran is already in receipt of the earliest effective date allowable by law. Indeed, as noted, any award based on a subsequently filed application for benefits can be made effective no earlier than the date the new application was received, which was October 2020, unless, as here, that new application was received within one year of an intent to file, which in this case was received on December 2, 2019. The RO, in its November 2020 rating decision, as revised by the February 2023 CUE rating decision, has therefore already assigned the earliest possible effective date of December 2, 2019, for the award of service connection for the acquired psychiatric disorder. See 38 C.F.R. §§ 3.155, 3.400; see generally Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003).

The Board acknowledges the Veteran's allegations that the RO did not properly develop the Veteran's July 2017 claim prior to issuing the October 2017 rating decision, such that an earlier effective date should be granted. See March 2023 appellate brief. However, there is no legal basis to award an earlier effective date in this case based on alleged duty to assist errors that occurred prior to the issuance of a decision that has become final. See 38 C.F.R. § 3.400.

Based on the procedural history in this case, as discussed above, under the law, December 2, 2019, is the proper effective date for the grant of service connection for a left hip condition, because it is the date VA received the Veteran's intent to file that was followed within one year by a supplemental claim, and the rating decision dated prior to December 2, 2019, was final. There is no basis to assign an effective date earlier than December 2, 2019, for the award of service connection for an acquired psychiatric disorder. Indeed, "[t]he statutory framework simply does 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." See Sears, supra.

The Board is appreciative of the Veteran's faithful and honorable service to our country; however, for the reasons and bases expressed above, the appeal for an earlier effective date is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38
no basis to assign an effective date earlier than December 2, 2019, for the award of service connection for an acquired psychiatric disorder. Indeed, "[t]he statutory framework simply does 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." See Sears, supra.

REASONS FOR REMAND

The appeal seeking revision of the October 2017 rating decision that denied entitlement to service connection for a psychiatric condition is remanded.

For claims under the modernized review system, a claimant who is dissatisfied with a decision by the AOJ may file a request for HLR in accordance with 38 C.F.R. § 3.2500. See 38 C.F.R. § 3.2601. A complete request for HLR must be received by VA within one year of the date of VA's issuance of the notice of the decision. See 38 C.F.R. § 3.2500, 3.2601.

In this case, the Veteran filed a CUE motion in October 2021 seeking revision of the October 2017 rating decision that denied entitlement to service connection for a psychiatric condition. This was construed by the RO as a claim for an earlier effective date for the award of service connection for an acquired psychiatric disorder, which was denied in a January 2022 rating decision. The January 2022 did not address the Veteran's October 2021 CUE motion or reference the relevant laws and regulations for CUE, and the October 2021 CUE motion has not been adjudicated in any subsequent decision. Instead, the RO has apparently misconstrued the October 2021 CUE motion as an earlier effective date claim throughout the pendency of this appeal. See Phillips v. Brown, 10 Vet. App. 25 (1997) (noting that a CUE motion and a claim seeking an earlier effective date are not the same or inextricably intertwined because while the effective date element flows directly from the award of service connection, a CUE motion may be brought at any time and is premised upon an error in a prior final RO adjudication). An assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of another claim. See, e.g., Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). Therefore, remand is warranted so that the RO can satisfy the regulatory duty to properly adjudicate the October 2021 CUE motion in the first instance. See 38 C.F.R. § 20.802(a); see also Jarrell v. Nicholson, 20 Vet. App. 326 (2006) (explaining that 38 U.S.C. § 5109A requires that a request for revision of a final RO decision on the basis of CUE be submitted to the RO for initial adjudication).

The matter is REMANDED for the following action:

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Issue a rating decision properly adjudicating in the first instance the Veteran's October 2021 CUE motion that seeks to revise the October 2017 rating decision that denied entitlement to service connection for a psychiatric disorder.

S. B. MAYS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Thomas, 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.

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