Citation Nr: 0000369 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-06 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date earlier than April 2, 1992, for a grant of service connection for an anxiety disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robin M. Webb, Associate Counsel INTRODUCTION The veteran had active service from July 1968 to July 1970. This appeal arises before the Board of Veterans' Appeals (Board) from a rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied the veteran's claim of entitlement to an earlier effective date for the grant of service connection for an anxiety disorder. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran filed a claim of entitlement to service connection for a nervous condition in March 1986; this claim was finally denied in an August 1991 Board decision. The veteran did not appeal the Board's decision to the United States Court of Appeals for Veterans Claims (known as the U.S. Court of Veterans Appeals prior to March 1, 1999) (hereinafter, Court). As such, the Board's August 1991 decision became final in accordance with applicable law. 3. In April 1992, the RO received the veteran's VA Form 21- 4138 (Statement in Support of Claim), in which the veteran sought to have his claim for service connection for a personality disorder reopened. The RO denied this claim, and the veteran subsequently appealed. Based upon evidence obtained pursuant to the Board's March 1995 remand, the RO, in a February 1997 rating decision, reopened the claim and granted service connection for an anxiety disorder, effective from April 2, 1992. CONCLUSION OF LAW An effective date earlier than April 2, 1992, for entitlement to service connection for an anxiety disorder is not warranted. 38 U.S.C.A. § 5110 (West 1991 & Supp. 1999); 38 C.F.R. § 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Pertinent Law and Regulations Controlling law and regulation provide that, 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 thereof. See 38 U.S.C.A. § 5110(a) (West 1991). The effective date of VA disability compensation benefits for direct service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a),(b) (West 1991); 38 C.F.R. § 3.400 (1999). II. Factual and Procedural Background In March 1986, the RO received the veteran's initial claim of entitlement to service connection for a nervous condition. Pursuant to review of the veteran's service medical records, private medical records (dated from January to February 1986), and a VA examination (conducted in May 1986), the RO, in a July 1986 rating decision, denied service connection for a personality disorder, stating that the veteran's records were negative for any indication that he had participated in drug experimentation at Edgewood Arsenal and that a personality disorder could not be service-connected. The veteran appealed this denial. Subsequent to two remands (dated in October 1988 and October 1989) and review of the veteran's service records that documented his participation in drug experimentation, the Board denied service connection for an acquired psychiatric disorder in an August 1991 decision. The veteran was informed of his appellate rights, but he did not appeal this denial to the Court. In April 1992, the veteran requested that the RO reopen his claim of entitlement to service connection for a personality disorder. At that time, the veteran contended that if the VA examiners were given the service records that documented his participation in drug experimentation, the examination results would be different. The RO denied the veteran's claim in correspondence to the veteran, dated in June 1992. The veteran appealed this denial. In a March 1995 remand, the Board noted that the veteran's service records, which documented his participation in drug experimentation, had been received after the only VA examination of record (conducted in May 1986). As such, the VA examiners could not provide an opinion as to whether the specific drugs administered to the veteran in those experiments could have led to the development of the veteran's psychiatric disorder. The RO was directed to afford the veteran a VA psychiatric examination, which was conducted in April 1996. Pursuant to this examination, the RO, in a February 1997 rating decision, granted the veteran service connection for an anxiety disorder, effective from April 2, 1992. III. Analysis The Board recognizes the veteran's contention that he is entitled to an effective date earlier than April 2, 1992, for a grant of service connection for an anxiety disorder. Specifically, the Board acknowledges the veteran's assertions that he was ultimately granted service connection based upon evidence that was in his claims file in 1986, when he originally filed for service connection for a nervous disorder. However, the Board must adhere to established law and regulations in its determinations. As such, the veteran's claim must be denied. Specifically, while the record does, indeed, document the veteran's earlier claim for service connection for a nervous disorder, it also indicates that that earlier claim was finally denied. In an August 1991 decision, the Board denied service connection for an acquired psychiatric disorder, and the veteran did not appeal that denial to the Court. Rather, the veteran, in April 1992, indicated that he wished the RO to reopen his claim for service connection for a personality disorder. As discussed above, controlling law and regulation provide that, unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application thereof. See 38 U.S.C.A. § 5110(a). The effective date of VA disability compensation benefits for direct service connection is the date of receipt of claim or date entitlement arose, whichever is later, unless a claim is filed within a year after separation from service. See 38 U.S.C.A. § 5110(a),(b); 38 C.F.R. § 3.400. Here, the veteran's claim for service connection for a personality disorder (eventually characterized as an anxiety disorder) was reopened in April 1992, after the Board's final adjudication in August 1991. As such, the effective date of the grant of service connection for an anxiety disorder cannot be prior to April 1992, the date the RO received the veteran's request to reopen his claim. The law prohibits it in this instance. To reiterate, the effective date of an award based on a claim reopened after final adjudication shall not be earlier than the date of receipt of application thereof. See 38 U.S.C.A. § 5110(a) (emphasis added). Quite simply, the veteran did not appeal the Board's August 1991 decision, and it became final. In effect, by requesting the RO to reopen his claim in April 1992, the veteran began an entirely new administrative claims process. In reaching this determination, the Board understands the logic in the veteran's argument that evidence of the veteran's participation in drug experimentation was of record when the Board rendered its decision in August 1991 and that that same evidence was subsequently used to reopen his claim for service connection and to support a grant of service connection for an anxiety disorder. As such, the veteran believes he is entitled to an effective date of March 1986, the date of his original claim. However, controlling law, as it is applied to the facts in this instance, precludes such a disposition. The April 1991 Board decision is final, as the veteran did not appeal to the Court, and he did not request that the RO reopen his finally disallowed claim until April 1992. As such, as to a claim reopened after final adjudication, the Board stresses that the effective date cannot be earlier than the application to reopen. Id. Further, the Board points out that the subsequent grant of service connection for an anxiety disorder was not premised solely on the veteran's records, which documented his participation in drug experimentation. Rather, prior to the grant of service connection in a February 1997 rating decision, the record was supplemented with a more current VA psychiatric examination (conducted in April 1996), in which the examiner opined that the veteran's anxiety disorder was related to the documented in-service experimentation. The April 1996 VA psychiatric examination was the first and only clinical evidence of record that related the veteran's anxiety disorder (or nervous condition) to his service and events therein. In light of the above, therefore, the veteran's claim as to an earlier effective date is denied. ORDER Entitlement to an effective date earlier than April 2, 1992, for a grant of service connection for an anxiety disorder is denied. V. L. Jordan Member, Board of Veterans' Appeals