Case A26039997

Summary

The veteran, who served from June 1993 to July 2002, sought an earlier effective date for service connection for persistent depressive disorder with anxious distress. The Board reviewed the procedural history, noting the veteran's intent to file in May 2019 and subsequent claims and appeals. The initial claims for anxiety and depression were denied in January 2020 and October 2020. A supplemental claim in April 2021 for anxiety and depression remained unadjudicated until a September 2024 rating decision granted service connection for persistent depressive disorder with anxious distress, effective January 17, 2024. A subsequent Higher-Level Review in April 2025 assigned an effective date of January 2, 2023. The veteran sought an effective date of May 31, 2019, arguing the April 2021 supplemental claim was unadjudicated until September 2024, thus entitling her to the earlier date under Ingram v. Nicholson. The Board agreed, finding the April 2021 claim remained unadjudicated until September 2024, and that the claim was continuously pursued since May 2019. The Board also considered the date entitlement arose, noting the February 2024 VA examiner's opinion that the persistent depressive disorder was at least as likely as not incurred in or caused by service, with symptoms manifesting in Alaska due to isolation and low mood. Based on the claim date of May 31, 2019, and the in-service manifestation, the Board granted the earlier effective date. The Board rejected arguments for CUE, non-adjudication of a 2003 claim (as it did not include mental health issues), inadequacy of a 2003 exam (as no mental health claim was pending then), and the consideration of medical publications submitted after the AOJ decision.

Rationale

April 2021 supplemental claim remained unadjudicated until September 2024 rating decision.; Continuous pursuit of claim since May 31, 2019.; February 2024 VA examiner opined condition at least as likely as not incurred in or caused by service.; Symptoms manifested in service in Alaska.

Full Decision Text

Citation Nr: A26039997
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 250703-563842
DATE: April 29, 2026

ORDER

Entitlement to an earlier effective date of May 31, 2019, but no earlier, for the grant of service connection for persistent depressive disorder, with anxious distress is granted.

FINDINGS OF FACT

1. The Veteran continuously pursued her claim for service connection for depression and anxiety since VA received her intent to file on May 31, 2019.  

2. The Veteran's April 2021 VA Form 20-0995, Supplemental Claim Application, (received on April 6, 2021), for service connection for anxiety and depression remained pending and adjudicated.

3. Competent medical evidence establishes that the Veteran's persistent depressive disorder onset in service.

CONCLUSION OF LAW

The criteria for entitlement to an earlier effective date of May 31, 2019, for the award of service connection for persistent depressive disorder, with anxious distress have been met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.160 (c), 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active service from June 1993 to July 2002.

In January 2025, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a September 2024 decision.  In April 2025, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior  decision.  Therefore, the Board may only consider the evidence of record at the time of the September 2024 decision and any evidence submitted during an applicable evidentiary window.

In the July 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 September 2024 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. 

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. 

Entitlement to an earlier effective date of May 31, 2019, but no earlier, for the grant of service connection for persistent depressive disorder, with anxious distress is granted.

The September 2024 rating decision granted service connection for persistent depressive disorder with anxious distress and assigned a 50 percent evaluation pursuant to 38 C.F.R. 4.130, Diagnostic Code 9433, effective January 17, 2024.  The April 2025 HLR decision on appeal granted an earlier effective date of January 2, 2023.

The Veteran, through her representative, seeks an effective date of July 3, 2002, asserting that there is new and relevant evidence consisting of in-stressor exposures documented in a December 1998 service treatment record and Disability Benefits Questionnaires dated in July 2021 and February 2024.  The Veteran's representative also asserts that the Regional Office's (RO) "non-adjudication" of a claim filed on June 30, 2003, and purported denial of the claim on May 1, 2025, "overlooked service connection" and "reaffirmed an inadequate 11/7/2003 exam" that was conducted by a non-specialized examiner, failed to evaluate the Veteran's claimed anxiety and depression, and lacked an adequate rationale.  The Veteran's representative asserts that the "non-adjudication" of the claim filed on June 30, 2003, the purported denial of the claim on May 1, 2025, and the currently assigned effective date constitute clear and unmistakable errors (CUEs).  Further, the Veteran's representative asserts that the RO
ication" of a claim filed on June 30, 2003, and purported denial of the claim on May 1, 2025, "overlooked service connection" and "reaffirmed an inadequate 11/7/2003 exam" that was conducted by a non-specialized examiner, failed to evaluate the Veteran's claimed anxiety and depression, and lacked an adequate rationale.  The Veteran's representative asserts that the "non-adjudication" of the claim filed on June 30, 2003, the purported denial of the claim on May 1, 2025, and the currently assigned effective date constitute clear and unmistakable errors (CUEs).  Further, the Veteran's representative asserts that the RO ignored lay evidence.  The Veteran's representative also asserts the following additional CUEs: misapplication 38 C.F.R. § 3.303(b), continuity of symptomatology; failure to interpret a June 30, 2003, claim in accordance with Clemons v. Shinseki, 23?Vet. App.?1, 5 (2009); and failure to assist in obtaining a July 15, 1993, service treatment record.   The Veteran's representative also cited to several medical publications in support of an earlier effective date.

For the reasons discussed below, the Board finds that an earlier effective date of May 31, 2019, is warranted.

Legal Standards

Unless specifically provided otherwise, the effective date of an award of compensation based on a reopened claim (after a final disallowance) is the date of the claim to reopen or the date entitlement arose, whichever is later.  38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2), (r).  If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen.  See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003).

Under 38 C.F.R. § 3.2500 (h), the effective date will be the date VA received a veteran's initial claim or the date entitlement arose, whichever is later, if a veteran continuously pursues an issue by timely filing in succession any of the available review options as specified in § 3.2500 (c) within one year of the issuance of the decision.  38 C.F.R. § 3.2500 (h)(1).  If a supplemental claim is received more than one year after the date on which the AOJ issues notice of a decision, the effective date will be fixed in accordance with the date entitlement arose but will not be earlier than the date of receipt of the supplemental claim.  38 C.F.R. § 3.2500 (h)(2).

Under the Appeals Modernization Act (AMA), a claimant who disagrees with a prior VA decision may file a supplemental claim.  38 C.F.R. § 3.2501.  VA will readjudicate a claim if "new and relevant" evidenced is presented or secured.  38 C.F.R. § 3.156 (d).  In the AMA system, an initial claim is a new claim requesting service connection for a disability or grant of a new benefit on a form prescribed by the Secretary.  38 C.F.R. §§ 3.1 (p)(1), 3.160(b).  A supplemental claim is any complete claim for a VA benefit on an application form prescribed by the Secretary where an initial or supplemental claim for the same or similar benefit on the same or similar basis was previously decided.  30 C.F.R. §§ 3.1 (p)(2), 3.2501.

Where VA fails to adjudicate a claim, it "remains pending until there is either a recognition of the substance of the claim in an AOJ 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.
J 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., 21 Vet. App. at 243.

In determining whether a filing raised a claim that was pending and unadjudicated at the time that VA granted a subsequent "claim" for benefits for the same disability, VA is required to consider the Veteran's entitlement, on any basis consistent with the claim, to any benefit which could flow from a determination of service connection and to which entitlement is reasonably raised on the record. Ephraim v. Brown, 5 Vet. App. 549 (1993).

In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record.

Evidence and Analysis

Turning to the record, on May 31, 2019, the Veteran submitted an intent to file.  On July 22, 2019, the Veteran submitted a claim for service connection for anxiety and depression.

A January 2020 rating decision denied entitlement to service connection for anxiety and depression; the decision included a favorable finding that the Veteran had a diagnosis of anxiety.  

Following a June 2020 request for a HLR, an October 2020 rating decision denied service connection for anxiety and depression.

In January 2021, the Veteran submitted a notice of disagreement for the January 2020 rating decision and identified the issues on appeal as anxiety and depression, among others.

In April 2021, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, stating that she would like to withdraw the January 2021 notice of disagreement and to continue the AMA process.  She stated that a "new 0995" had been filed "for the items claimed in the 1-24-2021 filing."  The Veteran's April 2021 VA Form 20-0995, Supplemental Claim Application, includes the issue of entitlement to service connection for anxiety and depression.

There is no indication that the AOJ took any action to address the April 2021 supplemental claim. 

In June 2021, the Veteran submitted a claim for service connection for a somatic symptom disorder, with predominant pain, with depressive and anxious distress. 

A July 2021 rating decision denied service connection for somatic symptom disorder with predominant pain.  The decision included a favorable finding that the Veteran had been diagnosed with persistent depressive disorder, with anxious distress.

In July 2021, the Veteran submitted a notice of disagreement for the July 2021 rating decision. 

In September 2021, the Veteran submitted a notice of disagreement for the July 2021 rating decision.

In January 2023, the Veteran submitted a VA Form 20-0995, Supplemental Claim Application, stating that she would like to discontinue her appeal and to continue the process at the RO level with respect to her claim for service connection for "somatic symptom disorder-now diagnosed as acquired persistent depressive disorder." 

A March 2023 rating decision denied the Veteran's claim.

In January 2024, the Veteran submitted a VA Form 20-0995, Supplemental Claim Application for service connection for "somatic symptom disorder now diagnosed as acquired persistent depressive disorder."

A September 2024 rating decision granted service connection for persistent depressive disorder with anxious distress, effective January 17, 2024. 

Following a January 2025 request for HLR, the April 2025 rating decision on appeal assigned an effective date of January 2, 2023.

The Board finds that the Veteran's April 2021 VA Form 20-0995, Supplemental Claim Application, included a claim for entitlement to service connection for anxiety and depression which remained unadjudicated until the September 2024 rating decision.  There is no indication that the AOJ addressed this claim.  Thus, the Veteran may be entitled to an effective date based on the April 2021 VA Form 20-0995, Supplemental Claim Application.  Ingram v. Nicholson, 21 Vet.
, effective January 17, 2024. 

Following a January 2025 request for HLR, the April 2025 rating decision on appeal assigned an effective date of January 2, 2023.

The Board finds that the Veteran's April 2021 VA Form 20-0995, Supplemental Claim Application, included a claim for entitlement to service connection for anxiety and depression which remained unadjudicated until the September 2024 rating decision.  There is no indication that the AOJ addressed this claim.  Thus, the Veteran may be entitled to an effective date based on the April 2021 VA Form 20-0995, Supplemental Claim Application.  Ingram v. Nicholson, 21 Vet. App. at 243.  

Further, the Veteran has continuously pursued her claim since May 31, 2019, by filing the June 2020 request for HLR and the April 2021 supplemental claim.    

The next issue for the Board to consider is the date entitlement arose.  38 C.F.R. §§ 3.400, 3.2500.  The term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis.  38 U.S.C. § 5110 (a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000).  These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation.  See generally 38 C.F.R. § 3.400.  For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested.  Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the AOJ receives the evidence, but the date to which that evidence refers.  McGrath, 14 Vet. App. at 35.

In December 2019, the Veteran submitted private treatment records.  A March 2016 private treatment record indicates an assessment of generalized anxiety disorder.  A June 2017 private treatment record indicates an assessment of moderate major depression and generalized anxiety disorder.  A July 2018 private treatment record that indicates a history of generalized anxiety disorder and moderate depression, and an assessment of moderate major depression.

The Veteran was afforded a VA examination in February 2024 and diagnosed with persistent depressive disorder with anxious distress.  In an August 2024 examination report, the examiner opined that the Veteran's persistent depressive disorder was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness.  As a rationale, the examiner stated that the Veteran reported her symptoms started in Alaska, with experiencing humiliation at her station, including weight control; and that she also experienced isolation and lack of daylight which contributed to her low mood.

Based on the February 2024 VA examiner's nexus opinion, the Board concludes that the Veteran's symptoms first manifested in service while the Veteran was in Alaska.  Thus, entitlement arose in service.

As indicated, the effective date of an award of service connection is the date the claim was received, or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400.  As the date of the claim, May 31, 2019, is later than the date entitlement arose, service connection is warranted from May 31, 2019.  

There is no legal basis for the assignment of an even earlier effective date.  In this regard, the Board acknowledges the various arguments by the Veteran's representative.  For the reasons discussed below, the Board concludes that the arguments do not support an earlier effective date than May 31, 2019. 

The Veteran's representative has asserted several CUEs; however, the AOJ did not adjudicate CUE in the April 2025 rating decision on appeal.  Each theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE in a rating that has not been adjudicated by the AOJ in the first instance. Jarell v. Nicholson, 20 Vet. App. 326, 332-33 (2006).

The Veteran's representative has asserted "non-adjudication" of a claimed filed on June 30, 2003.  This claim, however, did not include a claim for service connection for anxiety, depression, or other mental health disability.  Rather, the claim filed on June 30, 2003, specified three disabilities:  cervical dysplasia; weak ankle (right); and ing
 appeal.  Each theory of CUE is a separate and distinct matter, and the Board lacks jurisdiction over any theory of CUE in a rating that has not been adjudicated by the AOJ in the first instance. Jarell v. Nicholson, 20 Vet. App. 326, 332-33 (2006).

The Veteran's representative has asserted "non-adjudication" of a claimed filed on June 30, 2003.  This claim, however, did not include a claim for service connection for anxiety, depression, or other mental health disability.  Rather, the claim filed on June 30, 2003, specified three disabilities:  cervical dysplasia; weak ankle (right); and ingrown toenails.  As such, Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), is not applicable, notwithstanding the assertion of the Veteran's representative to the contrary. 

The Veteran's representative has asserted that the Veteran's November 2003 examination was inadequate for various reasons, to include that the examiner failed to evaluate the Veteran's claimed anxiety and depression.  However, at the time of the examination, there was no pending claim for service connection for anxiety and depression or any other mental health disability.  As stated previously, the claim filed on June 30, 2003, was limited to service connection for cervical dysplasia, weak ankle (right), and ingrown toenails.  

The Veteran's representative has asserted purported denial of the claim on May 1, 2025; however, there is no rating decision dated May 1, 2025, in the record. 

The Veteran's representative also cited to several medical publications in support of an earlier effective date.  The Board, however, may only consider the evidence of record at the time of the September 2024 AOJ decision.  38 C.F.R. § 20.301.  The Veteran's representative included the medical publication citations in the July 2025 notice of agreement, after the AOJ issued the September 2024 decision.  Therefore, the medical publications cited in the notice of disagreement cannot be considered at this time.  38 C.F.R. §§ 20.300, 20.301, 20.801. 

Entitlement to an earlier effective date of May 31, 2019, but no earlier, for the grant of service connection for persistent depressive disorder, with anxious distress is granted.  

 

 

D. JOHNSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M.T.

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.