Case A26039987

D. SMART · 2026 · Case ID: A26039987

MIXED

Summary

The veteran, who served from November 1986 to October 1989, appeals the denial of service connection for an acquired psychiatric disorder and the denial of entitlement to Total Disability based on Individual Unemployability (TDIU). The Board granted an earlier effective date of August 13, 2018, for the service connection of the acquired psychiatric disorder. This decision was based on the finding that the presumption of administrative regularity was rebutted because the VA sent the May 2019 rating decision to an incorrect address, which was returned to the VA, and no further attempts were made to contact the veteran. Consequently, the May 2019 decision was deemed not final, making the August 13, 2018, claim filing date the correct effective date. The Board remanded the TDIU claim because the veteran's education and employment history during the period on appeal were unclear. The veteran indicated he became too disabled to work in January 2013 and had not worked since June 2024, but provided conflicting information about employment at Lowe's. The Board found that VA had a duty to assist in clarifying this history by obtaining a complete VA Form 21-8940 and potentially a Social Security earnings statement to facilitate the TDIU determination.

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Docket No.

250909-583438

Full Decision Text

Citation Nr: A26039987
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 250909-583438
DATE: April 29, 2026

ORDER

Entitlement to an earlier effective date of August 13, 2018, but no earlier, for the award of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is granted.

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 1, 2023, is remanded.

FINDINGS OF FACT

1. In a May 2019 rating decision, the RO denied entitlement to service connection for an acquired psychiatric disorder.

2. The Veteran rebutted the presumption of regularity, and the May 2019 rating decision is not final.

3. No formal or informal claim for service connection for an acquired psychiatric disorder was received prior to August 13, 2018, that remains unadjudicated.

CONCLUSION OF LAW

The criteria for an earlier effective date of August 13, 2018, for the award of service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5109A, 5110; 38 C.F.R. § 3.105(a), 3.151(a), 3.155, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from November 1986 to October 1989.

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2024 and April 2025 (TDIU) rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO).

In September 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an August 2024 decision. In September 2024, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal regarding an acquired psychiatric disorder, which considered the evidence of record at the time of the prior August 2024 decision.

In the September 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the August 2024 (acquired psychiatric disorder) agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

Therefore, the Board may only consider the evidence of record at the time of the April 2025 agency of original jurisdiction (AOJ) decision on appeal for the TDIU claim. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

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, 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 claim of entitlement to TDIU prior to June 1, 2023, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103(c)(2)(ii).

Earlier Effective Date

Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a). For claims for disability compensation filed within one year of the Veteran's separation from service, the effective date of an award of disability compensation will be the day following the date of the veteran's discharge. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400.

Any communication or action, indicating an intent
the claim. 38 C.F.R. § 3.103(c)(2)(ii).

Earlier Effective Date

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or their representative may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155.

Where VA fails to adjudicate a claim, it "remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability." Ingram v. Nicholson, 21 Vet. App. 232 (2007). If there is no final decision on the original claim prior to a grant of a subsequent "claim" for the same disability, then the claimant may be entitled to an effective date commensurate with the date the original claim was filed because the original claim remained pending and unadjudicated until the later "claim" was granted. A claimant may properly argue entitlement to an earlier effective date on the ground that a later "claim" is merely additional correspondence on the previously pending claim. Id. at 243.

Additionally, there is a presumption of administrative regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). VA need only mail to the Veteran's last address of record for the presumption to attach. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). This presumption may be rebutted only by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). This requires showing that the Veteran did not receive the notice or correspondence in question, and that there was another viable address where he could have been reached. Cross v. Brown, 9 Vet. App. 18, 19 (1996). Absent this, VA is entitled to rely on his address of record. See id. When clear evidence sufficient to rebut the presumption is submitted, the burden of proof shifts to VA to establish proper mailing. Romero v. Tran, 33 Vet. App. 252, 267 (2021).

Entitlement to an earlier effective date of August 13, 2018, but no earlier, for the award of service connection for an acquired psychiatric disorder.

The Veteran contends he is entitled to an earlier effective date for the award of service connection for an acquired psychiatric disorder.

For the reasons below, the Board finds an earlier effective date of August 13, 2018, but no earlier, for the award of service connection for an acquired psychiatric disorder is warranted.

Here, in this case, the Veteran filed his claim for entitlement to service connection for an acquired psychiatric disorder on August 13, 2018. In a February 2019 rating decision, the AOJ denied entitlement to service connection for an acquired psychiatric disorder. In February 2019, the Veteran filed a claim for reconsideration of entitlement to service connection for an acquired psychiatric disorder. In a May 2019 rating decision, the AOJ denied entitlement to service connection for an acquired psychiatric disorder.

Although the notification letter had the correct address on the notice, the notice was sent to an incorrect street address and was subsequently returned mail. See May 2019 Returned Mail. The RO was aware of the returned mail but made no further attempts to deliver the May 2019 rating decision.

As the presumption of regularity has been rebutted, the burden of proof is on VA to show that the May 2019 rating decision was mailed to the correct address of record. To this extent, there is no evidence, such as independent proof of a postmark, a dated receipt, or other evidence establishing a subsequent mailing.

Based on
a May 2019 rating decision, the AOJ denied entitlement to service connection for an acquired psychiatric disorder.

Based on the foregoing, the Board finds the May 2019 rating decision is not final as the Veteran did not receive the rating decision. The May 2019 rating decision was sent to an incorrect address, and the VA was made aware that he did not receive the notification as the letter was returned mail. As such, the May 2019 rating decision is not final. Accordingly, the Board finds that the grant of service connection for an acquired psychiatric disorder is effective August 13, 2018, the date that the Veteran filed his claim. See 38 C.F.R. § 3.400. The Veteran does not contend, and the evidence does not show that an effective date prior to August 13, 2018, is warranted.

REASONS FOR REMAND

Entitlement to TDIU prior to June 1, 2023.

The Veteran contends he is entitled to TDIU prior to June 1, 2023.

With the above grant of an earlier effective date for the grant of service connection for an acquired psychiatric disorder, the Veteran meets the schedular criteria for entitlement to individual unemployability prior to June 1, 2023. 38 C.F.R. § 4.16.

Under the AMA, the Board must remand a claim to correct an error by the AOJ to satisfy its duty to assist the Veteran under 38 U.S.C. § 5103A if the error occurred prior to the AOJ decision on appeal. 38 U.S.C. § 5103A (f)(2)(A); 38 C.F.R. § 20.802 (a). The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802(a).

The Board finds that there is incomplete information concerning the Veteran's education history and the nature and extent of his employment history during the period on appeal. Although there is evidence of the Veteran not working during the period on appeal (e.g., November 2024 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability), the Veteran's education and employment history is unclear. The Veteran indicated he became too disabled to work in January 2013 and had not worked since June 2024, however, in a November 2022 General Report of Information, the Veteran indicated he worked at Lowe's, but there is no indication of the employment timeframe.

Given the incomplete employment information provided by the Veteran, VA has a duty to attempt to clarify the Veteran's employment history by means of obtaining a complete VA Form 21-8940 and any other potentially relevant evidence, such as a Social Security earnings statement, for the years associated with the TDIU appeal period to facilitate a determination on the Veteran's employment status.

The AOJ's failure to properly develop the TDIU claim and attempt to obtain a complete employment history from the Veteran is a pre-decisional duty to assist error. Remand is therefore warranted. 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a).

(Continued on the next page)

The matter is REMANDED for the following action:

1. Send the Veteran a VA Form 21-8940 and request that he provide his complete employment and education history prior to June 1, 2023.

D. SMART

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K.A. Murphy

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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