Citation Nr: 0809845	
Decision Date: 03/25/08    Archive Date: 04/09/08

DOCKET NO.  05-40 324	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to an effective date prior to June 22, 2000, for 
the assignment of a 100 percent evaluation for major 
depression, recurrent, severe with psychotic features.  


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate 
for Veterans Affairs


ATTORNEY FOR THE BOARD

Jason R. Davitian, Counsel




INTRODUCTION

The veteran served on active duty from March 1971 to March 
1973, September 1977 to December 1977 and November 1981 to 
December 1984.  

This case is before the Board of Veterans' Appeals (BVA or 
Board) on appeal from a March 2004 rating decision of the 
Department of Veterans Affairs (VA) Regional Office in San 
Juan, the Commonwealth of Puerto Rico (RO), which implemented 
a January 2004 Board decision by assigning a 100 percent 
evaluation to the veteran's major depression, recurrent, 
severe with psychotic features.  The effective date was June 
22, 2000, the date of the veteran's claim for an increased 
evaluation.

In March 2005 correspondence, the veteran asserted that a May 
1989 rating decision, and unspecified earlier rating 
decisions, committed clear and unmistakable error (CUE) by 
failing to assign a 70 percent evaluation and individual 
unemployability to the veteran's psychiatric disability, and 
by failing to grant service connection for other conditions.  
This issue has not been adjudicated and is referred to the RO 
for proper development.  


FINDING OF FACT

After a November 1990 rating decision denying an increased 
evaluation, the veteran did not seek an increased evaluation 
for major depression, recurrent, severe with psychotic 
features, until his June 22, 2000, claim; the competent 
medical evidence does not show that this disability warranted 
an increased evaluation at any time during the year prior to 
June 22, 2000.


CONCLUSION OF LAW

An effective date earlier than June 22, 2000, for the grant 
of a 100 percent evaluation for major depression, recurrent, 
severe with psychotic features, is not warranted.  38 
U.S.C.A. §§ 5103, 5103A, 5107, 5110(a) (West 2002 & Supp. 
2007); 38 C.F.R. § 3.400 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Because the application of the law to the undisputed facts is 
dispositive of this appeal, no discussion of VA's duties to 
notify and assist is necessary.  See Mason v. Principi, 16 
Vet. App. 129 (2002).  

Moreover, the United States Court of Appeals of the Federal 
Circuit has held that once the underlying claim is granted, 
further notice as to downstream questions, such as the 
effective date, is not required.  See Hartman v. Nicholson, 
483 F.3d 1311 (Fed. Cir. 2007); see also VAOPGCPREC 5-2004; 
69 Fed. Reg. 59989 (2004) (VA's notice obligations do not 
apply to claims that could not be substantiated through 
notice and assistance).

As to VA's duty to assist, the veteran essentially asserts 
that an earlier effective date is warranted based on the 
findings and conclusions contained in medical evidence which 
is of record.  He has not identified any outstanding evidence 
that should be associated with the claims folder.  The Board 
thus finds that there is no further action to be undertaken 
to comply with the provisions of 38 U.S.C.A. § 5103(a), 
§ 5103A, or 38 C.F.R. § 3.159, and that the veteran will not 
be prejudiced by the Board's adjudication of his claim.  

The veteran contends that his 100 percent evaluation for 
major depression, recurrent, severe with psychotic features, 
warrants an effective date earlier than June 22, 2000.  He 
maintains the effective date should be in December 1984, the 
date of his last separation from active duty.  

The provisions governing the assignment of the effective date 
of an increased rating are set forth in 38 U.S.C.A. § 5110(a) 
and (b)(2), and 38 C.F.R. § 3.400(o).  The general rule with 
respect to effective date of an award of increased 
compensation is that the effective date of award "shall not 
be earlier than the date of receipt of the application 
thereof."  38 U.S.C.A. § 5110(a).  This statutory provision 
is implemented by regulation that provides that the effective 
date for an award of increased compensation will be the date 
of receipt of claim or the date entitlement arose, whichever 
is later.  38 C.F.R. § 3.400(o)(1).  

An exception to that rule regarding increased ratings 
applies, however, under circumstances where the evidence 
demonstrates that a factually ascertainable increase in 
disability occurred within the one-year period preceding the 
date of receipt of a claim for increased compensation.  If an 
increase in disability occurred within one year prior to the 
claim, the increase is effective as of the date the increase 
was "factually ascertainable."  If the increase occurred 
more than one year prior to the claim, the increase is 
effective the date of claim.  If the increase occurred after 
the date of claim, the effective date is the date of 
increase.  38 U.S.C.A. 5110(b)(2); Dalton v. Nicholson, 21 
Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 
(1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998).  

In the present case, a November 1990 rating decision denied 
an evaluation in excess of 50 percent for the veteran's major 
depression, recurrent.  The RO informed the veteran of this 
decision in a December 1990 letter.  The veteran submitted a 
claim for an increased evaluation on June 22, 2000.  This 
claim led to the March 2004 rating decision on appeal 
assigning a 100 percent evaluation for major depression, 
recurrent, severe with psychotic features, effective June 22, 
2000.  The rating decision noted that June 22, 2000, was the 
date of receipt of the claim.  

The claims file does not contain any correspondence from the 
veteran of any nature between the November 1990 rating 
decision and the present June 22, 2000, claim.  The did not 
seek treatment from VA during this time period for his 
service connected depression or any other disability.  

Applying the pertinent VA regulations to the facts of this 
claim, it is clear that an earlier effective date is not 
warranted.  A careful review of the record fails to show 
that, following the November 1990 rating decision that denied 
an increased evaluation, the veteran filed either a formal or 
informal claim for an increased evaluation until June 22, 
2000.  38 C.F.R. § 3.400(o)(1).  Further, there is no medical 
evidence that any increase in disability occurred within the 
one-year period prior to the June 22, 2000, claim.  38 C.F.R. 
3.400 (o)(1)(2).  Thus, in assigning June 22, 2000, as the 
effective date for the increased evaluation, VA has already 
assigned the earliest possible effective date for the 100 
percent rating for the veteran's major depression, recurrent, 
severe with psychotic features. 

The Court has held that "[w]here the law and not the evidence 
is dispositive, the claim should be denied or the appeal to 
the BVA terminated because of the absence of legal merit or 
the lack of entitlement under the law."  See Shields v. 
Brown, 8 Vet. App. 346, 351-352 (1995) [citing Sabonis v. 
Brown, 6 Vet. App. 426 (1994)].  Since the law is 
dispositive, an effective date prior to June 22, 2000, for 
the grant of a 100 percent evaluation for major depression, 
recurrent, severe with psychotic features, is not available.  
Sabonis, supra.


ORDER

An effective date earlier than June 22, 2000, for the grant 
of a 100 percent evaluation for major depression, recurrent, 
severe with psychotic features, is denied.



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs