Citation Nr: 0717306 Decision Date: 06/08/07 Archive Date: 06/18/07 DOCKET NO. 03-28 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES Entitlement to an effective date earlier than January 30, 2001, for the award of a 70 percent evaluation for post- traumatic stress disorder (PTSD) (initially diagnosed as depression or depressive reaction). REPRESENTATION Appellant represented by: Robert W. Legg, Attorney ATTORNEY FOR THE BOARD Barbara C. Morton, Associate Counsel INTRODUCTION The veteran served on active duty from June 1966 to March 1970. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In that decision, the RO granted service connection for chronic obstructive pulmonary disease and PTSD, assigning an effective date of January 30, 2001. The veteran's disagreement with the effective dates led to this appeal. In a May 2005 decision, the Board denied both earlier effective date claims. The veteran appealed the adverse decision with respect to the effective date for PTSD to the United States Court of Appeals for Veterans Claims (Court). The Court granted a Joint Motion for Remand (Joint Motion) in August 2006, thereby vacating the Board's May 2005 decision to the extent that it did not award an effective date prior to January 30, 2001, for a 70 percent evaluation for PTSD. Thereafter in November 2006, the Board remanded the case to the Appeals Management Center (AMC), directing it to obtain and associate with the claims file VA medical records from 1984 and 1985 and to readjudicate the issue. The AMC issued a Supplemental Statement of the Case (SSOC) in February 2007. As set forth in more detail below, the Board determines that the veteran is entitled to an effective date of July 21, 1992 for the receipt of a claim for an increased rating for depression. The issues that remain are whether a compensable rating is warranted for depression from July 21, 1992 through January 29, 2001 and entitlement to an effective date for the grant of service connection and a compensable rating for PTSD prior to January 30, 2001. With respect to the proper rating(s) to be assigned from the new July 21, 1992 effective date, this aspect of the appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the veteran if further action is required on his part. FINDINGS OF FACT 1. VA medical reports dated December 31, 1984 and February 25, 1985 relate to examination or treatment of the veteran's mental disability, diagnosed as depression or depressive reaction, for which he had already been service connected at that time. 2. VA had constructive possession of these 1980s VA medical treatment records, effective from July 21, 1992, the date of Bell v. Derwinski, 2 Vet. App. 611 (July 21, 1992). CONCLUSION OF LAW An effective date of July 21, 1992 for the receipt of a claim for an increased rating for depression is warranted. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2006); Bell v. Derwinski, 2 Vet. App. 611 (July 21, 1992). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2005). The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on an interpretation of law, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). That is, the VCAA has no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). In the instant case, as explicated below, resolution of the issue of entitlement to an earlier effective date depends upon an interpretation of the case law pertaining to the promulgation of the constructive possession doctrine. Therefore, because no reasonable possibility exists that submission of additional evidence would aid in substantiating this claim, any deficiencies of VCAA notice or assistance are deemed moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). In addition, because the Board has rendered a decision in favor of the veteran, namely, determining that he is entitled to an earlier effective date for his service connected PTSD, further discussion of the VCAA is unnecessary at this time. It should be noted, however, that the RO should cure any potential defects in notice, as would be demonstrated by a failure to notify the veteran of all five elements of a service connection claim (to include the type of evidence necessary to establish a disability rating and the effective date for the claimed disability), or assistance provided by VA, prior to its determination of a proper disability rating and effective date for the veteran's service-connected disability. See Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004) (holding that proper VCAA notice must "precede an initial unfavorable [RO] decision"); see also Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006) (holding that the VCAA notice requirements contained in 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, which include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability). As the instant Board decision grants an effective date of July 21, 1992 for the receipt of a claim for an increased rating for depression, no further development is warranted for this aspect of the veteran's claim. The issues that remain are whether a compensable rating is warranted for depression from July 21, 1992 through January 29, 2001; and entitlement to an effective date for the grant of service connection and a compensable rating for PTSD prior to January 30, 2001.f or service connection for PTSD of July 21, 1992. This latter matter is addressed in the remand below. II. Factual Background By a May 1970 decision, the RO granted service connection for depressive reaction, mild, evaluating it at zero percent from April 1, 1970. Subsequently, the RO received an increased rating claim for the veteran's service connected depression (also claimed as PTSD). This correspondence reflects date stamps of both January 30, 2001 and January 29, 2001. The RO thereafter granted an increased rating to 70 percent for PTSD (initially diagnosed as depression), assigning an effective date of January 30, 2001. In May 2006, the RO received photocopies of two sets of VA medical records, dated December 31, 1984 and February 25, 1985. In the December 1984 record, which contained a history of present illness and a physical examination, the clinician noted the veteran's history of depression since his active service. At this time the veteran indicated that he had no friends. In the February 1985 VA psychiatric examination report, the clinician similarly recorded the veteran's in-service history of depression. The veteran reported having no psychiatric treatment since service, and that his depression symptoms largely had resolved themselves post-service. The veteran noted that he worked at a stressful job with the state highway department and had recently been promoted to a more stressful position in June 1984. He also indicated that in the past two years, he had an increase in depression symptoms, with crying, fatigue, decreased interest in work and increased sleep. He had few interests outside of the workplace, and felt tense and irritable on the job. Based on these data, the VA clinician diagnosed the veteran with significant depression, most likely related to situational stressors. The examiner also noted that the veteran had no treatment for depression for the past 15 years and that he had been successful at work. III. Law & Analysis 38 U.S.C.A. § 5110(a) sets forth the general provisions governing effective dates of awards for compensation and increased awards for compensation. It provides that "[u]nless specifically provided otherwise in this chapter . . . the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). 38 C.F.R. § 3.400 similarly provides that "[e]xcept as otherwise provided, the effective date of an evaluation and award of . . . compensation . . . or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400. Further, with respect to increased awards, the statute also states that "[t]he effective date of an award for increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability has occurred, if application is received within one year from such date." 38 U.S.C.A. § 5110(b)(2). In addition, and relevant to the instant case, 38 C.F.R. § 3.157(b) sets forth provisions relating to VA reports of examination as constituting a claim for increase of an already service connected disorder. It provides that "[o]nce a formal claim for . . . compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of [specified records] will be accepted as an informal claim for increased benefits . . . ." 38 C.F.R. § 3.157(b); accord MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006) (noting that "a [VA] medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability"); Norris v. West, 12 Vet. App. 413, 417 (1999) (citing 38 C.F.R. § 3.157(b)(1) and noting that "an informal claim for benefits 'will' be initiated by a report of examination or hospitalization for previously established service-connected disabilities"). Such records include reports of examination or hospitalization by VA, and the veteran need not even "identify the report as a claim or . . . identify the benefits sought." Servello v. Derwinski, 3 Vet. App. 196, 199 (1992) (noting that § 3.157(b) "does not require the veteran to identify the report as a claim or to identify the benefits sought"). Thus, "[t]he date of [VA] outpatient or hospital examination or date of admission to a VA . . . hospital will be accepted as the date of receipt of a claim." 38 C.F.R. § 3.157(b)(1). Such a provision, however, "appl[ies] only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission." 38 C.F.R. § 3.157(b)(1) (emphasis added). Additionally, consistent with this provision, 38 C.F.R. § 3.155(c), provides that when a veteran has filed a claim for compensation under 38 C.F.R. § 3.151, "an informal request for increase," as in the case of the generation of a VA medical treatment report pertaining to an already service- connected disability, "will be accepted as a claim." 38 C.F.R. § 3.155(c); accord Norris, 12 Vet. App. at 417. That is, § 3.155(c) "mandates that the Secretary [of VA] accept an informal request for a rating increase 'as a claim'; the Secretary cannot require the veteran to take any additional action in order to perfect that 'claim' - as contrasted with an informal claim under 38 C.F.R. § 3.155(a), which would be applicable in a situation where the veteran had not previously filed a claim that met 'the requirements of § 3.151 . . . .'" Norris, supra, at 421 (emphasis in original). Accordingly, the "benefit to a claimant that paragraph (c) [of § 3.155] provides is that that claimant need not file another formal application for benefits as called for in § 3.155(a), i.e., need not start the process anew, in order to obtain an increase if he or she has already filed a formal claim . . . ." Id. (emphasis in original). The Board determines that the 1984 and 1985 VA psychiatric records constitute an "informal" claim for an increased rating, pursuant to 38 C.F.R. § 3.157(b)(1), as they clearly relate to the veteran's already service connected psychiatric disorder (depression) and were generated by VA. In addition, pursuant to 38 C.F.R. § 3.155(c), VA must consider this "informal" request for an increase as an increased rating claim in and of itself, without requiring the filing of any additional materials to initiate this claim. In addition, the Board notes that in the instant case, the 1980s VA medical reports were not actually part of the claims file at the time of the RO's July 2002 decision, having been actually incorporated in 2006. Notwithstanding this fact, however, according to Bell v. Derwinski, medical treatment records generated by VA, but not in fact contained in the claims file or record at the time of a VA adjudication, are deemed to have been in VA's constructive possession, and therefore must be considered. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992) (per curiam) (holding that the Secretary had, at least, constructive knowledge of records generated by VA but not contained in the claims file); see also 60 Fed. Reg. 43186 (Aug., 18, 1995); VAOPGCPREC 12-95 (May 10, 1995). While this constrictive possession doctrine does not apply to VA determinations rendered prior to the Bell decision in 1992, in the instant case, the RO here issued its increased rating decision that is the subject of the instant appeal after Bell in July 2002, and therefore this principle applies. See Lynch v. Gober, 11 Vet. App. 22, 29 (1997) (rejecting application of constructive possession doctrine to VA claims decided prior to Bell), vacated and remanded on other grounds sub nom. Lynch v. West, 178 F.3d 1312 (Fed.Cir.1998) (table), reinstated in full by Lynch v. West, 12 Vet .App. 391 (1999) (per curiam); accord Damrel v. Brown, 6 Vet. App. 242, 246 (1994) (recognizing that "only the 'law that existed at the time' of the prior adjudication . . . can be considered. The constructive notice rule of Bell was not formulated until 1992. . . ."). In view of the foregoing, the Board finds that the correct effective date for the receipt of a claim for an increased rating for depression is July 21, 1992. As a matter of law, the veteran is not entitled to an effective date prior to the decision in Bell v. Derwinski, 2 Vet. App. 611 (July 21, 1992), which exacted a substantive change in the law. The issues that remain are whether a compensable rating is warranted for depression from July 21, 1992 through January 29, 2001; and entitlement to an effective date for the grant of service connection and a compensable rating for PTSD prior to January 30, 2001. This latter matter is addressed in the remand below. ORDER An effective date of July 21, 1992 for the receipt of a claim for an increased (compensable) rating for depression is granted; the appeal is granted to this extent only. . REMAND Having determined that the veteran is in fact entitled to an effective date prior to January 2001 (i.e., from July 21, 1992) for the receipt of a claim for an increased (compensable) rating for depression , the Board finds that additional development is warranted to address the issues of whether a compensable rating is warranted for depression from July 21, 1992 through January 29, 2001; and entitlement to an effective date for the grant of service connection and a compensable rating for PTSD prior to January 30, 2001. 38 C.F.R. § 19.9 (2006). Specifically, the AMC/RO must provide proper VCAA notice to the veteran. Accordingly, the case is remanded for the following action: 1. The AMC/RO must review the record and ensure compliance with all notice and assistance requirements set forth in the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.159 (2005). Notice consistent with 38 U.S.C.A § 5103(a) and 38 C.F.R. § 3.159(b)(1) with respect to the claims of whether a compensable rating is warranted for depression from July 21, 1992 through January 29, 2001; and entitlement to an effective date for the grant of service connection and a compensable rating for PTSD prior to January 30, 2001 must: (a) inform the claimant about the information and evidence not of record that is necessary to substantiate the claims for the benefit sought; (b) inform the claimant about the information and evidence that VA will seek to provide; (c) inform the claimant about the information and evidence the claimant is expected to provide; and (d) request that the claimant provide any evidence in the claimant's possession that pertains to the claims. The AMC/RO should provide the appellant with VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish ratings and effective dates for the benefit sought as outlined by the Court of Appeals for Veterans Claims in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006). 2. The AMC must readjudicate the veteran's claims of whether a compensable rating is warranted for depression from July 21, 1992 through January 29, 2001; and entitlement to an effective date for the grant of service connection and a compensable rating for PTSD prior to January 30, 2001. The RO must treat the July 21, 1992 date of the Bell decision, which promulgated the constructive possession doctrine, as the earliest effective date of veteran's increased rating claim instead of the veteran's January 2001 submission. As the increased rating issue in the instant appeal spans both before and after the pertinent November 7, 1996 amendment to the PTSD and mental disorder rating criteria, the AMC must consider both the old and new rating criteria for PTSD in evaluating this claim. The AMC must consider all relevant medical records from July 21, 1992 in assigning increased ratings from that date. If the AMC determines that a 70 percent evaluation for PTSD is not warranted prior to January 2001, it shall assign an effective date for this evaluation no later than January 29, 2001. 3. Then, after completion of any other notice or development indicated by the state of the record, with consideration of all evidence added to the record subsequent to the last SSOC, the AMC/RO must readjudicate the veteran's claims of whether a compensable rating is warranted for depression from July 21, 1992 through January 29, 2001; and entitlement to an effective date for the grant of service connection and a compensable rating for PTSD prior to January 30, 2001. If any benefit sought on appeal remains denied, the AMC/RO should issue an appropriate SSOC and provide an opportunity to respond. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 370 (1999) (per curiam). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252, only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2006).