Case A26038968

J. SAIKH · 2026 · Case ID: A26038968

GRANTED

Summary

The veteran, who served in the Army from June 2002 to January 2003 and September 2008 to October 2009, with prior National Guard service, appealed the denial of service connection for erectile dysfunction and sought an earlier effective date for a 50 percent rating for other specified trauma and stressor related disorder. The appeal for erectile dysfunction was withdrawn by the veteran's representative and subsequently dismissed. The primary issue concerned the effective date for the 50 percent rating for the psychiatric disorder. The veteran had filed an intent to file in March 2015 on an incorrect form, and VA failed to properly notify him or his representative about the defect, instead sending a notification directly to the veteran. The Board found that VA's failure to provide proper notice and the submission of an unambiguous intent to file, despite the incorrect form, established good cause for an extension of time to perfect the claim. Consequently, the Board granted the veteran's request for an earlier effective date of March 31, 2015, aligning with the initial intent to file. The Board determined that while the veteran's psychiatric condition warranted a 50 percent rating, the evidence did not establish that he met the criteria for this rating prior to March 31, 2015, as the earliest relevant VA treatment records were from May 2016, and no private records supported an earlier date.

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210201-136998

Full Decision Text

Citation Nr: A26038968
Decision Date: 04/27/26 Archive Date: 04/27/26

DOCKET NO. 210201-136998
DATE: April 27, 2026

ORDER

The appeal as to the issue of entitlement to service connection for erectile dysfunction is dismissed.

Entitlement to an effective date of March 31, 2015, but no earlier, for the assignment of an evaluation of 50 percent for other specified trauma and stressor related disorder, is granted.

FINDINGS OF FACT

1. In a February 2021 written statement, prior to the promulgation of a decision in the appeal, the Veteran's representative indicated that he wished to withdraw the appeal as to the issue of entitlement to service connection for erectile dysfunction.

2. On March 31, 2015, the Veteran's representative at the time submitted a VA 21-0966, Intent to File a Claim for Compensation and/or Pension Benefits.

3. In April 2015, the agency of original jurisdiction (AOJ) notified the Veteran that he submitted an unofficial version of the form and that his intent to file could not be accepted. The AOJ did not notify the Veteran's representative that it was unable to accept the Veteran's March 2015 intent to file and did not furnish the Veteran with the appropriate application form as required by 38 C.F.R. § 3.155(b).

4. On March 31, 2020, more than one year after the Veteran submitted the VA Form 21-0996, the Veteran submitted a VA Form 21-526EZ, Application for Disability Compensation, which included an increased rating claim for his other specified trauma disorder, claimed as anxiety and depression. In a May 2020 rating decision, the AOJ increased the Veteran's evaluation to 50 percent, effective March 31, 2020.

5. In June 2020, the Veteran submitted a VA Form 20-0996, Request for Higher Level Review, seeking, in pertinent part, entitlement to an earlier effective date for the assignment of a 50 percent evaluation. During his October 2020 informal hearing conference, he described the circumstances for his failure to file a formal claim via his VA Form 21-526EZ within one year of his VA Form 21-0996 Intent to File.

6. The Veteran's June 2020 VA Form 20-0996, Request for Higher Level Review, constitutes a request for extension of time to perfect his claim by submitting a formal claim following his intent to file under 38 C.F.R. § 3.109(b) and Ferko v. McDonough, 37 Vet. App. 262 (2024).

7. The extenuating circumstances described by the Veteran during his October 2020 informal hearing conference and VA's failure to send the Veteran the appropriate application form establish good cause for his failure to timely file his VA Form 21-526EZ within one year of his VA Form 21-0966 Intent to File.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal for the issue of entitlement to service connection for erectile dysfunction have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for entitlement to an effective date of March 31, 2015, but no earlier, for the grant of a 50 percent evaluation for service-connected other specified trauma disorder have been met. 38 U.S.C. §§ 1110, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from June 2002 to January 2003 and from September 2008 to October 2009. He had additional service in the Army Reserve and in the Pennsylvania Army National Guard, which included a verified period of active duty for training (ACDUTRA) from August 1996 to January 1997.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2021 rating decision, which was a higher-level review of a May 2020 rating decision.

The Veteran submitted a VA Form 10182 in February 2021 and requested a hearing before a Veterans Law Judge. In November 2024, his representative withdrew the hearing request. Therefore, the Board may only consider the evidence of record at the time of the May 2020 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the May 2020 decision and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, he 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision.

Law and Analysis

The Veteran's representative has raised an issue with a pre-decisional duty to notify or duty to assist with regard to the claim for an earlier effective date decided herein, as discussed in detail below. However, the Veteran and his representative have not raised any additional issues with the pre-decisional duty to notify or assist with regard to the claims decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Dismissal

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205.

In this case, in a February 2021 written statement, the Veteran's representative indicated that he wished to withdraw the appeal as to the issue of entitlement to service connection for erectile dysfunction. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the appeal is dismissed.

Earlier Effective Date

The Veteran's representative has asserted that the Veteran is entitled to an effective date earlier than March 31, 2020, for the grant of a 50 percent evaluation for his service-connected psychiatric disorder, based on a due process violation. See February 2021 VA Form 10182. Specifically, he has contended that an effective date in 2015 is warranted because the Veteran submitted an intent to file on March 31, 2015, on an ineligible form and the AOJ failed to notify the Veteran's representative at that time. See October 2020 Higher-Level Review Informal Conference Report.

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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 (a).

The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (o)(2); see also Gaston v. Shinseki,
for increase, of compensation, dependency and indemnity compensation, or pension, 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 (a).

The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) ("increase" for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998).

On March 24, 2015, VA amended its regulations to require all claims governed by its adjudication regulations be filed on a standard form prescribed by the Secretary. See 79 Fed. Reg. 57660 (Sept. 25, 2014) codified as amended at 38 C.F.R. §§ 3.151, 3.155. These amendments also implemented the intent to file concept, which operates similarly to the previous informal claim process. Additionally, these amendments eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for an increase or to reopen under 38 C.F.R. § 3.157. Since the Veteran's claim was filed after March 24, 2015, these amendments apply to this case.

If VA receives an incomplete application form, it must notify the claimant and the claimant's representative, if any, of the information necessary to complete the application. 38 U.S.C. § 5102(b); 38 C.F.R. § 3.155(c). If the claimant submits a complete claim within one year of the incomplete application, VA will consider the filing date as the date VA received the incomplete application. 38 C.F.R. § 3.155(c).

Under 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 appropriate to the benefit sought within one 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.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other).

The Veteran was initially granted service connection for an adjustment disorder in an August 2013 rating decision, and assigned an evaluation of 10 percent, effective January 13, 2012. The Veteran was notified of that determination and of his appellate rights, but he did not appeal that decision or submit new and material evidence within one year thereafter. Therefore, the August 2013 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103.

On March 31, 2015, VA received a VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension Benefits. In April 2015, VA sent the Veteran a letter notifying him that he used an unofficial version of the form that was released as a training tool prior to the official release date. VA noted that the official forms had a November 2014 date in the lower left corner. Thus, VA informed the Veteran that his intent to file could not be accepted. This correspondence provided information on how to obtain
; 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.302, 20.1103.

On March 31, 2015, VA received a VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension Benefits. In April 2015, VA sent the Veteran a letter notifying him that he used an unofficial version of the form that was released as a training tool prior to the official release date. VA noted that the official forms had a November 2014 date in the lower left corner. Thus, VA informed the Veteran that his intent to file could not be accepted. This correspondence provided information on how to obtain the correct form and advised the Veteran that, alternatively, he could submit an intent to file form. VA further informed the Veteran that no further action would be taken until VA receives a completed application for benefits or an intent to file.

The Veteran did not submit a completed claim or an intent to file within one year of the March 2015 submission. Rather, he submitted a new claim for an increased rating for his service-connected psychiatric disability on March 31, 2020. See March 2020 VA 21-526EZ, Fully Developed Claim.

In a May 2020 rating decision, the Veteran was granted an evaluation of 50 percent for his other specified trauma disorder, effective March 31, 2020. The Veteran submitted a June 2020 Form 20-0996, Request for Higher Level Review. During an October 2020 Informal Conference, the Veteran argued that the effective date should have gone back to 2015. The Veteran asserted that he had filed an Intent to File on March 31, 2015 that was submitted on form that was not eligible. The Veteran asserted that VA failed to inform his representative at the time of the issue.

As the Veteran's representative has pointed out, the AOJ did not notify the Veteran's representative at that time that her March 2015 submission could not be accepted because it was not the correct form. Instead of notifying the representative, the AOJ sent the April 2015 notification directly to the Veteran. In addition, the April 2015 notification letter does not indicate that the representative was copied on the letter.

The regulations are clear that if VA receives an incomplete application form, it must notify the claimant and the claimant's representative, if any, of the information necessary to complete the application, pursuant to 38 U.S.C. § 5102(b); 38 C.F.R. § 3.155(c). Moreover, the Board finds it noteworthy that the Veteran's representative submitted the incorrect VA Form 21-0966 rather than the Veteran; however, only the Veteran was notified that the incorrect form had been submitted.

The Board observes that 38 C.F.R. § 3.155(b), which governs the intent to file a claim process, constitutes a claims-processing rule rather than a jurisdictional rule. The United States Court of Appeals for Veterans Claims (Court) highlighted the difference between jurisdictional rules, which delimit "the classes of cases a court may entertain," and claims-processing rules, such as filing deadlines, which seek to promote the efficiency of litigation or the administrative process by "requiring parties to take certain procedural steps at certain specified times." Ferko v. McDonough, 37 Vet. App. 262 (quoting Fort Bend Cnty. v. Davis, 139 S.Ct. 1843, 1848 (2019) and Henderson v. Shinseki, 131 S.Ct.1197 (2011)). Importantly, claims-processing rules may be subject to waiver whereas jurisdictional rules may not. A limitations period, such as 38 C.F.R. 3.155(b)'s requirement to file a complete application within one year of an intent to file, should be considered jurisdictional only where traditional tools of statutory construction "plainly show" that Congress intended the time limit to be jurisdictional in nature. United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015). In this case, section 3.155's authorizing statute shows no such intent. See 38 U.S.C. § 501(a) (authorizing VA to prescribe rules and regulations necessary or appropriate to carry out the laws administered by VA including specific authority to prescribe the forms of application by claimants under such laws). The Supreme Court has repeatedly held that filing deadlines ordinarily are not jurisdictional but are rather "quintessential claim-processing rules," and such is the case here. Sebelius v. Auburn Reg'l Med. Ctr., 133 S.Ct. 817 (2013) (quoting Henderson, supra).

As a non
Kwai Fun Wong, 135 S. Ct. 1625 (2015). In this case, section 3.155's authorizing statute shows no such intent. See 38 U.S.C. § 501(a) (authorizing VA to prescribe rules and regulations necessary or appropriate to carry out the laws administered by VA including specific authority to prescribe the forms of application by claimants under such laws). The Supreme Court has repeatedly held that filing deadlines ordinarily are not jurisdictional but are rather "quintessential claim-processing rules," and such is the case here. Sebelius v. Auburn Reg'l Med. Ctr., 133 S.Ct. 817 (2013) (quoting Henderson, supra).

As a non-jurisdictional claims-processing rule, section 3.155(b) is amenable to appropriate exception, and 38 C.F.R. § 3.109(b) provides VA claimants with a mechanism for seeking and granting acceptance of an untimely application. The regulation provides that time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. 38 C.F.R. § 3.109(b).

In promulgating this provision, VA explained that its intent was to ensure that notice of any time limit within which a claimant or beneficiary must act to perfect a claim or challenge an adverse VA decision was effectively communicated to that claimant or beneficiary. See Procedural Due Process, Final Rule, 55 Fed. Reg. 13522 (April 11, 1990). VA noted that ineffective notice was tantamount to no notice and that therefore there would be circumstances in which the extension of time limits was appropriate. VA stated that, as it was not possible to delineate all of the fact situations which could reasonably give rise to a finding of good cause for extension of time limits, each claim for time limit extension should be adjudicated on its own merits. Id.

While it is true that, effective March 24, 2015, all claims must be filed on standard forms, 38 C.F.R. § 3.155, submitting a claim on the wrong form is a claims-processing rule violation, not a jurisdictional bar, and such rules may be subject to waiver or forfeiture in certain circumstances. See Hall v. McDonough, 34 Vet. App. 329, 330, 334 (2021) ("Although VA can require a claimant to fill out a particular form and can dismiss nonconforming or untimely filings in appropriate circumstances, none of this affects the Board's jurisdiction to hear appeals of veterans benefits decisions;" in enforcing claims processing rules, "the Board should identify the governing law, any formal defects in the appeal, whether waiver or forfeiture is a relevant consideration, and any other relevant factors").

The March 2015 Intent to File was submitted on the incorrect form. However, because submitting the incorrect form is a claims processing rule violation and the Veteran's intent to file a claim was unambiguous, the Board will construe the Intent to File, received on March 31, 2015, as an intent to file a claim. The Veteran's representative was not notified that she submitted the incorrect form. In addition, there is no evidence in the claims file that VA ever furnished the Veteran with the appropriate application form as required by 38 C.F.R. § 3.155(b).

As the Board has construed the March 31, 2015 submission as an intent to file a claim, pursuant to 38 C.F.R. § 3.109(b) and Ferko, supra, the Board finds that the Veteran's June 2020 Form 20-0996, Request for Higher Level Review, constitutes a request for extension of time to perfect his claim via submission of a formal claim following his intent to file. The Board further finds that the circumstances described during the October 2020 informal hearing conference, to include the failure to send the Veteran's representative the April 2015 letter informing them of the defective March 2015 intent to file, as well as VA's failure to send the Veteran the appropriate application form following receipt of the March 2015 intent to file, establish good cause for his failure to timely file his VA Form 21-526EZ within one year of his March 31, 2015 intent to file.

The Board therefore grants the Veteran's extension request in the June 2020 Request
Higher Level Review, constitutes a request for extension of time to perfect his claim via submission of a formal claim following his intent to file. The Board further finds that the circumstances described during the October 2020 informal hearing conference, to include the failure to send the Veteran's representative the April 2015 letter informing them of the defective March 2015 intent to file, as well as VA's failure to send the Veteran the appropriate application form following receipt of the March 2015 intent to file, establish good cause for his failure to timely file his VA Form 21-526EZ within one year of his March 31, 2015 intent to file.

The Board therefore grants the Veteran's extension request in the June 2020 Request for Higher Level Review and finds that his March 2020 VA Form 21-526EZ Application for Disability Compensation was timely filed following his March 2015 Intent to File.

Based on this finding, the Board must now consider the appropriate effective date for the assignment of the 50 percent evaluation for the Veteran's service-connected other specified trauma and stressor related disorder. As noted above, the date of the Veteran's claim is March 31, 2015, the date of the Intent to File. Thus, the remaining question is whether it was factually ascertainable that the Veteran met the criteria for a 50 percent rating within one year of the March 31, 2015 Intent to File. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (o)(2).

The Veteran was assigned a 50 percent evaluation for his other specified trauma disorder pursuant to 38 C.F.R. 4.130, Diagnostic Code 9410. Under Diagnostic Code 9410, a 50 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships.

Upon review, the Board finds that it was not factually ascertainable that entitlement to a 50 percent evaluation for the Veteran's other specified trauma disorder arose prior to March 31, 2015. The record does not contain evidence that the Veteran met the criteria for a 50 percent evaluation prior to March 31, 2015. Notably, the earliest VA treatment records pertaining to the period on appeal are from May 2016, when the Veteran appeared for a Behavioral Health Evaluation. Prior to that evaluation, a July 2013 VA opinion was obtained from a clinical psychologist pertaining to the Veteran's separate claim for service connection for posttraumatic stress disorder, which is earlier than the one-year period prior to the March 31, 2015 Intent to File. The Veteran had also not submitted any private treatment records pertaining to his trauma disorder. For these reasons, the Board concludes that it was not factually ascertainable that an increase in the Veteran's other specified trauma disorder occurred prior to the March 31, 2015 Intent to File.

(Continued on the next page)

Based on the foregoing, the earliest effective date available for the assignment of a 50 percent evaluation for the Veteran's other specified trauma disorder is March 31, 2015. Accordingly, an effective date of March 31, 2015, but no earlier, is granted.

J. SAIKH

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. Osegueda, 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.

Analyze in VA Law Explorer