Citation Nr: 0815059 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 05-18 558 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date earlier than July 28, 1989 for the grant of a 100 percent disability rating for service-connected generalized anxiety reaction with major depression. REPRESENTATION Veteran represented by: American Red Cross ATTORNEY FOR THE BOARD S. Bush, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1996 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Procedural history The veteran served on active duty in the United States Navy from August 1974 to August 1975. Service connection for anxiety reaction was initially granted in a June 1976 rating decision; a 10 percent disability rating was assigned. The veteran's service-connected anxiety disorder was increased to 50 percent disabling in an April 1995 rating decision. The veteran filed a claim for an increased disability rating in January 1996. In the above-referenced March 1996 rating decision, the RO increased veteran's service-connected generalized anxiety reaction with major depression to 100 percent disabling effective July 22, 1992. The veteran filed a notice of disagreement with the effective date assigned to his service-connected psychiatric disorder in the March 1996 rating decision. He perfected his appeal of the issue with the timely submission of his substantive appeal (VA Form 9) in January 1997. In February 1999, the Board issued a decision which continued the July 22, 1992 effective date. The veteran appealed the Board's denial of an earlier effective date to the United States Court of Appeals for Veterans Claims (the Court). In November 1999, counsel for the veteran and the Secretary of VA filed a Joint Motion for Remand. In that Joint Motion, both parties asserted that the Board had failed to provide adequate reasons and bases in its determination that an earlier effective date was not warranted; specifically, the Board failed to address whether a July 1989 communication from the veteran constituted an informal claim for an increased disability rating. An Order of the Court dated November 19, 1999 granted the motion and vacated the Board's decision. The case was then returned to the Board. In August 2000, the Board issued a second decision which continued the denial of an effective date prior to July 22, 1992. The veteran appealed the decision to the Court. A second Joint Motion for Remand was filed by counsel for the veteran and the Secretary of VA in April 2001, in which both the parties asserted that a remand was required in order to determine the potential applicability of the Veterans Claims Assistance Act of 2000 (VCAA). An Order of the Court dated May 4, 2001 granted the motion and vacated the Board's August 2000 decision. The case was subsequently returned to the Board. A third decision was issued by the Board in October 2001 which denied the veteran's claim, and the veteran appealed this determination to the Court. A third Joint Motion for Remand was filed by counsel for the veteran and the Secretary of VA in May 2002, in which both the parties asserted that a remand was required in order to provide adequate reasons and bases. Specifically, the Board had failed to consider the weight of a private medical opinion from Dr. P. and address whether the veteran was entitled to a disability rating in excess of 10 percent between July 1989 and July 1992 (if an effective date in July 1989 was not subsequently granted for the 100 percent disability rating). An Order of the Court dated June 4, 2002 granted the motion and vacated the Board's October 2001 decision. The case was again returned to the Board. In September 2003, the Board remanded the claim for additional evidentiary development, namely to obtain VA outpatient records identified by the veteran. Such was accomplished, and in the December 2003 rating action a Decision Review Officer (DRO) granted an effective date of July 28, 1989 for the veteran's 100 percent disability rating. The veteran filed a notice of disagreement with the December 2003 DRO decision. A SOC which continued the July 28, 1989 effective date was issued in May 2005, and the veteran perfected his appeal with the timely submission of his substantive appeal (VA Form 9) in May 2005. Status of appeal Upon receipt of the veteran's submission of a notice of disagreement as to the December 2003 decision, the RO unnecessarily reinitiated the appellate process and assigned a new docket number to the claim. Though the veteran was awarded an earlier effective date in the December 2003 rating action, such did not constitute a full grant of the benefit sought in the instant case. See AB v. Brown, 6 Vet. App. 35, 38 (1993) [when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated]. Accordingly, the Board considers the March 1996 rating action as the decision which forms the basis of the instant appeal. DRO request After the veteran filed a notice of disagreement with the above-referenced December 2003 DRO decision, the RO sent the veteran a letter dated March 3, 2005 which informed him of his choice between DRO review of his claim (which is conducted on a de novo basis) or the traditional appeal process. The letter stated: "You must notify us within 60 days from the date of this letter whether you want to have your case reviewed by the Decision Review Officer or by the traditional appeal process . . . If we do not hear from you within 60 days, your case will be reviewed under the traditional appeal process." The veteran made no response within the requisite 60 days, or May 5, 2005. The RO subsequently processed his claim via the traditional appeal process. The veteran subsequently requested DRO review on his VA Form 9, received at the RO on May 31, 2005. The veteran petitioned the Court for extraordinary relief in the nature of mandamus, alleging the RO has not acted on his request for DRO review. He also asked for a stay of his claim until DRO review could be conducted, as well as a default judgment alleging the Court did not grant the VA Secretary's motion for an extension of time to file an answer to his petition. In a July 2007 Order, the Court rejected all three of the veteran's motions. The Court noted that the veteran failed to elect DRO review in the requisite time period and that granting a stay to allow for such would provide no benefit to the veteran or the Court. See the July 18, 2007 Order, page 2. Accordingly, the Board need not remand the claim for review by a DRO. Representation The Board notes that the veteran was previously represented by a private attorney and The American Legion. The veteran appointed American Red Cross as his representative in October 2006, thus revoking these previous powers of attorney. See 38 C.F.R. § 20.607 (2007). A representative from American Red Cross submitted an Informal Hearing Presentation to the Board in November 2007. Issues not on appeal On January 11, 2007, the Board denied the veteran's motion for reconsideration of a January 1984 Board decision. The veteran appealed this determination to the Court, who dismissed the appeal via a May 18, 2007 Order. A second motion for reconsideration of the January 1984 Board decision was denied by the Board on November 1, 2007. In March 2008 the Board denied the veteran's motion for reconsideration of an April 1989 Board decision. FINDINGS OF FACT 1. In an April 1989 decision, the Board denied entitlement to a disability rating higher than 10 percent for service- connected generalized anxiety disorder. 2. A claim for an increased disability rating for the service-connected psychiatric disorder was received on July 28, 1989. The veteran has been granted a disability rating of 100 percent, effective July 28, 1989. 3. As of July 28, 1988, it was factually ascertainable that an increase in the severity of the veteran's service- connected generalized anxiety disorder to the 100 percent level had occurred. CONCLUSION OF LAW The criteria for an effective date of July 28, 1988 for the award of a 100 percent disability rating for service- connected generalized anxiety disorder are met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 4.132, Diagnostic Code 9400 (1988); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks an effective date earlier than July 28, 1989 for the grant of a 100 percent disability rating for service-connected psychiatric disorder. In the interest of clarity, the Board will initially discuss certain preliminary matters. The Board will then address the pertinent law and regulations and their application to the facts and evidence. Stegall concerns As was alluded to in the Introduction, in September 2003 the Board remanded the claim to obtain a VA treatment records identified by the veteran. The agency of original jurisdiction (AOJ) was then to readjudicate the claim. The veteran subsequently submitted all records identified in the September 2003 remand and asked the AOJ to proceed to a decision on his claim. See the veteran's October 31, 2003 statement. As was noted in the Introduction, in December 2003 a DRO granted an earlier effective date effective date of July 28, 1989 for the veteran's 100 percent disability rating. Thus, all of the Board's remand instructions have been complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. Compliance with the Court's directives The Board wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C.A. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis has been undertaken with that obligation in mind. The concerns expressed in the Court's November 1999 and June 2002 Orders have been rendered essentially moot via the subsequent grant of an effective date of July 28, 1989. Nonetheless, the Board is obligated to fully address the issue on appeal. The May 2001 Court Order found that the applicability of the VCAA could not be determined in the first instance by the Court. The Board will address this issue immediately below. The VCAA The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002). After having carefully reviewed the record, the Board has concluded that no VCAA notice is necessary in this case because, as is more thoroughly explained below, the outcome of this earlier effective date claim depends exclusively on documents which are already contained in the veteran's VA claims folder. The Court has specifically held that a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). No additional development could alter the evidentiary or procedural posture of this case. In the absence of potential additional evidence, no notice is necessary. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant]. Moreover, any deficiency that may exist with the sufficiency of the VCAA notice letters or VA's development of the claim is moot in light of the fact that the Board is awarding the benefit sought on appeal. In any event, pursuant to the recent Court decision Dingess v. Nicholson, 19 Vet. App. 473 (2006), the veteran was provided a letter on March 20, 2006 which indicated that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. Subsequent to his receipt of this letter, the veteran indicated in July 2006 that there was no outstanding evidence relevant to this claim. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. As was alluded to above, the outcome of this earlier effective date claim rests with evidence which is already in the claims folder, which will be discussed below. There is no indication that any relevant evidence is missing from the claims folder. In addition, general due process considerations have been satisfied. See 38 C.F.R. § 3.103 (2007). The veteran has been accorded ample opportunity to present evidence and argument on this matter. He has declined the option of a personal hearing. In short, the Board believes that this issue was properly developed for appellate purposes. Further development would be a useless exercise. Accordingly, the Board will proceed to a decision on the merits. Pertinent law and regulations Finality Governing statutory and regulatory provisions stipulate that a decision of the Board is final. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 20.1100 (2007); see also 38 U.S.C.A. § 7104(b) (West 2002). Effective dates The effective date of a grant of an increased evaluation is based upon a variety of factors, including the date of claim, date entitlement is shown and finality of prior decisions. See 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). According to 38 C.F.R. § 3.400(o)(2), the effective date of an increase in compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2) (2007). See also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). Evidence contained in the claims file showing that an increase was ascertainable up to one year before the claim was filed will be dispositive. See Quarles v. Derwinski, 3 Vet. App. 129 (1992). In making this determination, the Board must consider all of the evidence, including that received prior to a previous final decision. See Hazan v. Gober, 10 Vet. App. 511, 521 (1997). Claims A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2007). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2007). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his 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 (2007). Schedular criteria Before November 7, 1996, the General Rating Formula for Psychoneurotic Disorders read as follows: 100% The attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community. Totally incapacitating psychoneurotic, symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. Demonstrably unable to obtain or retain employment. 38 C.F.R. § 4.132, Diagnostic Code 9400 (1988). Analysis The record reflects the RO has assigned an effective date of July 28, 1989 for a 100 percent disability rating for the veteran's service- connected psychiatric disorder. The veteran seeks an effective date of January 1, 1981 for the assignment of a 100 percent disability rating for his service-connected psychiatric disorder. He argues that since has been diagnosed with psychiatric disability in VA outpatient records dated from January 1, 1981, he should receive compensation as of that particular date. See, e.g., the veteran's June 2005 substantive appeal. In this case, the veteran's claim for an increased disability rating for his service-connected psychiatric disorder was denied by the Board in an April 1989 decision. The veteran did not appeal that decision to the Court, and as detailed in the Introduction above a recent motion to reconsider this decision has been denied by the Board. The April 1989 Board decision is therefore final. See 38 C.F.R. § 20.1100 (2007). Despite his arguments to the contrary, the veteran was properly advised of the April 1989 decision via a letter dated April 17, 1989, and he acknowledged receipt of the decision in a May 15, 1989 statement. The 100 percent rating has been assigned as of July 28, 1989, the date of an informal claim from the veteran for an increased disability rating. The Board's initial inquiry will therefore be whether an increased rating claim was filed after April 17, 1989, the date of the final Board decision on the issue of the veteran's disability rating for service- connected psychiatric disorder, and before the current effective date of the award in question, July 28, 1989. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) [the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits]. The veteran does not contend that he filed a specific claim, informal or formal, for an increased disability rating for his service-connected psychiatric disorder during this brief period, and the Board has not identified any communication or medical report which could be reasonably interpreted as such. Review of the claims folder shows only three submissions from the veteran dated between April 17, 1989 and July 28, 1989. The first submission, received at the RO on April 17, 1989, concerns the veteran's discharge status. The veteran makes no mention of his psychiatric problems in this statement. By no stretch of the imagination can this statement be construed as an informal claim for an increased disability rating for his service-connected psychiatric disorder. In the second submission, received at the RO on May 17, 1989, the veteran stated: "I have received BVA decision of 4-17-89 and should be taken into further consideration as insufficient acted upon and to be taken as not final." Attached to the statement was a copy of a September 1988 Order of the United States District Court, Northern District of Ohio, Eastern Division concerning a suit he filed against VA for purported due process violations for denying non- service-connected pension benefits in a final October 1986 Board decision. The Order denied VA's motion to dismiss the suit for lack of subject matter jurisdiction. The Board also does not construe this May 17, 1989 statement as an informal claim for an increased disability rating for his service-connected psychiatric disorder. In this submission, the veteran does not ask for an increase in his psychiatric disability rating; indeed, no mention of his service-connected psychiatric disability is made in this statement whatsoever. The Court has held that a claimant may assert a claim expressly or impliedly. See Isenbart v. Brown, 7 Vet. App. 537, 540-41 (1995). Crucially, however, in Brannon v. West, 12 Vet. App. 32 (1998), the Court observed that while the VA must interpret a claimant's submissions broadly, it is not required to conjure up issues that were not raised by the claimant. The Court has further held that VA is not held to a standard of prognostication when determining what issues are presented. See Talbert v. Brown, 7 Vet. App. 352, 356- 57; Allin v. Brown, 6 Vet. App. 207, 213 (1994): "[t]here must be some indication . . . that [a claimant] wishes to raise a particular issue . . . . The indication need not be express or highly detailed; it must only reasonably raise the issue." The veteran merely asserted his dissatisfaction with the Board's April 1989 decision in this May 1989 submission. The Board notes that this statement does not affect the finality of the April 1989 Board determination, as he did not file a timely appeal to the Court. See 38 U.S.C.A. § 7252 (West 2002). As for the attached September 1988 Order, such concerned the veteran's suit against VA for denying non-service-connected pension benefits in a final October 1986 Board decision. Again, by no stretch of the imagination can this document be construed as a claim for an increased disability rating for his service-connected psychiatric disability. See Talbert, supra. Finally, the third submission from the veteran, which was received at the RO on May 24, 1989, is a copy of the September 1988 Order of the United States District Court, Northern District of Ohio, Eastern Division. As detailed above, this document cannot be construed as an informal claim for an increased disability rating. Accordingly, there is no evidence that an increased rating claim was filed after April 17, 1989 and before July 28, 1989. The final matter for consideration is whether it is factually ascertainable that an increase in disability occurred within the one-year period prior to July 28, 1989. See 38 C.F.R. § 3.400(o) (2007). After a careful review of the record, the Board finds an increase in the severity of the veteran's service-connected psychiatric disability was factually ascertainable as of one year prior to the filing of the July 28, 1989 claim. See 38 C.F.R. § 3.400(o) (2007). Specifically, a VA mental status examination conducted in June 1988 showed that the veteran was: anxious, tense, and agitated with probable sleep disturbance. Because he is so agitated he has trouble with his concentration, memory, and thought confusion. He is very inefficient in carrying out responsibilities and does not have well-developed problem solving skills. There is a dependent, unassertive side to his personality with an underlying anger most often expressed in resentment and irritability. May fear loss of control and becomes overly sensitive to the reaction of others. He can experience paranoid ideation including extreme suspiciousness of others. Because he has poorly developed social skills and poor ego development, he remains socially isolated and withdrawn and avoids close interpersonal relationships. His self concept is very poor and he may feel despair and worthlessness. He may engage in much egocentric behaviors and appear to be immature. These clinical findings are sufficient to justify the assignment of a 100 percent rating for the veteran's service- connected generalized anxiety disorder as of July 28, 1988 in that they are arguably reflective of total social and industrial inadaptability. See 38 C.F.R. §4.132, Diagnostic Code 9400 (1988). An effective date prior to July 28, 1988 is not available by law. As was discussed above, 38 C.F.R. § 3.400(o) allows, at the most, an increased rating retroactive to one year before the claim. This is the date the Board is assigning. To some extent, the veteran appears to be raising an argument couched in equity, in that he contends it is unfair to deny an even earlier effective date for the increase in disability in his service-connected generalized anxiety reaction with major depression when, according to him, the disability has been at the 100 percent level since he was initially diagnosed in January 1981. However, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104 (West 2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The Board has decided this case based on its application of this law to the pertinent facts. In short, it was factually ascertainable that an increase in disability occurred as of July 28, 1988. For these reasons, the Board concludes that an effective date of July 28, 1988 is warranted for the increased rating for the service- connected psychiatric condition under 38 C.F.R. § 3.400(o). ORDER Entitlement to an effective date of July 28, 1988 for the grant of a 100 percent disability rating for service- connected generalized anxiety reaction with major depression is granted. ____________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs