Citation Nr: 1143155 Decision Date: 11/23/11 Archive Date: 12/06/11 DOCKET NO. 07-07 444 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to an effective date earlier than April 12, 2006 for the grant of service connection for depression. ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION Appellant (the Veteran) had active service from April 1988 to August 1999. This appeal comes before the Board of Veterans' Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (CAVC). The appeal originated from an October 2006 rating decision of the RO in Columbia, South Carolina. This matter was previously before the Board, and adjudicated in a September 2008 decision wherein the Board denied an effective date earlier than April 12, 2006 for a grant of service connection for depression. The Veteran appealed that decision to the CAVC. In a memorandum decision dated in January 2010, the CAVC vacated the Board's September 2008 decision and remanded this claim back to the Board for development consistent with the CAVC's instructions. In July 2010, the Board remanded this appeal for additional evidentiary development. It has since been returned to the Board for further appellate action. Concurrent with the Board's September 2008 decision on this issue, the Board also remanded a claim for a higher initial rating for service-connected depression. Following additional development, the Board denied that claim in an October 2009 decision. The Veteran filed a motion for reconsideration of that decision in April 2010, which was denied by the Board in June 2010. The Board acknowledges a pending appeal regarding a May 2010 RO denial of an increased rating for service-connected depression; however, that issue has not yet been certified to the Board and therefore will not be addressed in this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. The March 2000 rating decision was not appealed, and became final. 3. The provision of the former VA Adjudication Procedure Manual cited by the Veteran (M21-1, Part VI, Para 3.09(b)) is an interpretive rule rather than a substantive rule and cannot serve to raise a claim for service connection for a completely different disability than that claimed by the Veteran. 4. A claim for service connection for depression was not reasonably raised in the September 1999 claim seeking service connection for a duodenal ulcer. 5. The Veteran has not identified clear and unmistakable error in the March 2000 decision. 6. The earliest date of a pending claim for service connection for depression is April 12, 2006. CONCLUSION OF LAW The criteria for an effective date earlier than April 12, 2006 for the grant of service connection for depression are not met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.151, 3.156(c), 3.155, 3.159, 3.400 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011). In this case, the earliest possible date permitted by the effective date regulations (date of receipt of claim) has been granted, so that an earlier effective date is not legally possible. In cases such as this, where a claim cannot be substantiated because there is no legal basis for the claim, or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to meet the duty to assist a claimant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). The Board finds that the record as it stands includes sufficient competent evidence to decide the appeal for earlier effective date. See 38 C.F.R. § 3.159(c)(4). As noted above, this appeal involves a remand by the Board for additional evidentiary development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). While substantial compliance is required, strict compliance is not. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this case, the RO substantially complied with the Board's remand instructions by requesting service treatment records, including all records compiled at the Mental Health Clinic at Maxwell Air Force Base during active duty of the Veteran from April 1988 to August 1999, and by requesting pertinent treatment records, not already on file, which were compiled by the 42nd Medical Group at Maxwell Air Force Base and Behavioral Medicine. The RO certified in September 2011 that the records from Maxwell AFB were unavailable. Moreover, the Veteran in March 2011 and June 2011 correspondence agreed that there were no additional records located at Maxwell Air Force Base. Accordingly, no further efforts at obtaining the records specified in the Board's remand are necessary. While the AMC did not readjudicate the claim as instructed by the Board, and did not address the Veteran's contention that the provisions of the VA adjudication manual were not followed, there is no prejudice to the Veteran as no additional evidence was obtained, and as the CAVC's instruction regarding consideration of the above cited provisions was directed at the Board. Those provisions are addressed below. Earlier Effective Date for Service Connection The basic facts of this case are not in dispute. These include the fact that the Veteran was separated from active service in August 1999, and that her formal claim for service connection for depression was received at the RO on April 12, 2006. In an April 2006 VA Form 21-4138, the Veteran reported that she was opening a "new claim" for depression. She noted that she was treated for this condition while in the military and was currently getting treatment and was prescribed Prozac on April 4, 2006. In a May 2006 VA Form 21-4138, she reported that she was treated at the mental health clinic in service and was apparently diagnosed and treated for adjustment disorder, which she thought was depression. The Veteran submitted a claim for service connection for a duodenal ulcer in September 1999, one month after her discharge from service. This service connection claim did not mention depression or any psychiatric symptoms. In March 2000, the RO granted service connection for the duodenal ulcer. The Veteran now seeks an effective date for the grant of service connection for depression prior to April 12, 2006, the effective date assigned by the RO based on the date of receipt of the claim specifying depression. She contends that an implied claim for service connection for depression or a psychiatric disorder should have been developed and adjudicated by VA at the time of her 1999 claim for service connection for duodenal ulcer based on the fact that she was treated for psychiatric complaints in service. In her notice of disagreement the Veteran asserted that this is consistent with VA's duty to fully and sympathetically develop a veteran's claim to its optimum, citing VAOPGCPREC 4-2004. In the January 2010 memorandum decision, the CAVC took particular notice of the Veteran's assertion that a former VA Adjudication Procedure Manual (M21-1) provision requires VA to consider all claimed disabilities in the rating decision and all chronic disabilities found in the service treatment records even if they were not specifically claimed. The CAVC specifically held that the Board decision failed to acknowledge or address this argument. The CAVC indicated that, in particular, the Board did not address whether the language of the M21-1 provision at issue was the same at the time of the March 2000 decision on the appellant's ulcer claim as it is currently. The current version of the VA Adjudication Procedure Manual is cited as M21-1MR. The equivalent section in the current manual provides, when deciding an original claim for compensation, or when supplemental service treatment records are received following promulgation of an original rating decision, the adjudicator should determine service connection for all claimed disabilities, and consider soliciting a claim for other chronic, unclaimed disabilities noted in the service treatment records (STRs). See M21-1MR, Chapter IV, subpart ii, chapter 2, section A, topic 1. That section goes on to clarify that, except in claims for an increased rating under 38 CFR § 3.157(b), the CAVC has held that VA cannot generally construe the mere existence of medical records as an informal claim because there must be some intent by the claimant to apply for a benefit. Prior versions of the VA Adjudication Procedure Manual employed different language. The version in effect at the time of the filing of the September 1999 original compensation claim provided under M21-1, Part VI, Para 3.09(b) that, in addition to claimed disabilities, the adjudicator should also "consider all chronic disabilities found in the service records even if they were not claimed." That version provided the caveat that acute and transitory disorders without residual disability should not be considered unless specifically claimed. In this case, it is uncontested that the Veteran did not appeal any aspect of the March 2000 rating decision, and she does not contend that she submitted new and material evidence regarding a claim for depression within one year of that decision. Following Federal Circuit precedent, the Board finds that the March 2000 decision therefore became final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 20.302, 20.1103 (2011). To the extent that the Veteran now seeks to revisit the final March 2000 decision, such claim is without merit and must be dismissed as a freestanding claim for an earlier effective date. See Leonard v. Nicholson, 405 F3d 1333 (Fed Cir 2005); Rudd v. Nicholson, 20 Vet. App. 296 (2006). To hold otherwise would vitiate the rule of finality, which was expounded upon in Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). After review of all the evidence, the Board finds that a claim for service connection for depression was not reasonably raised at the time of the March 2000 rating decision, either by the Veteran or by action of the VA Adjudication Procedure Manual provision in question. The Veteran acknowledges that she never filed a claim for depression; indeed, the claim form never mentions depression, and in the March 2000 decision the RO made no findings pertinent to depression. In this case the disorder claimed in September 1999 has no relationship that the Board can discern to the depression the Veteran now contends was implied in the September 1999 claim. A duodenal ulcer and depression are separate and distinct disabilities, involving distinct body systems and for which separate ratings are provided, and there is no assertion to the contrary. The Veteran's assertion is that the RO did not correctly follow its own procedures as spelled out in the VA Adjudication Procedure Manual; however, even if true, this assertion does not provide a legal basis to assign an effective date consistent with the September 1999 claim, as the Board finds that this provision cannot within the Bounds of statue, caselaw, and VA regulations serve to raise a claim for any VA benefit. The CAVC held in Criswell v. Nicholson, 20 Vet. App. 501 (2006) that, while the law requires VA to give a sympathetic reading to a veteran's filings by determining all potential claims raised by the evidence, and applying all relevant laws and regulations, nevertheless, it is well settled that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. Citing MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed.Cir.2006) (holding that the plain language of the regulations require a claimant to have an intent to file a claim for VA benefits); also citing Rodriguez v. West, 189 F.3d 1351, 1353 (Fed.Cir.1999) (noting that even an informal claim for benefits must be in writing); also citing Brannon v. West, 12 Vet. App. 32, 35 (1998). While this notation was not specifically listed under the former version of the VA Adjudication Procedure Manual (M21-1, Part VI, Para 3.09(b)), the applicable law governing claims for VA benefits was the same at that time. Pertinent to the question in this case, and now specifically cited in the current version of the adjudication manual (M21-1MR, Chapter IV, subpart ii, chapter 2, section A, topic 1), the CAVC in Criswell went on to explain that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. Citing Brannon, 12 Vet. App. at 35; 38 C.F.R. § 3.155(a). The former VA Adjudication Procedure Manual provision cited by the Veteran (M21-1, Part VI, Para 3.09(b)) provides guidance in the development and adjudication of claims, but does not alter or supersede the statutes, regulations and judicial precedent governing what constitutes a formal and informal claim. Indeed, the term "pending claim" is defined under VA regulations as an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160 (c)(2011). Thus, for a claim to be considered pending, there must have been either a formal or informal application. As noted by the CAVC on many occasions, applicable law requires that the expression of an intent to apply for a benefit, and that this intent must be expressed in writing. To the extent that the VA Adjudication Procedure Manual in effect at the time of the September 1999 claim (M21-1, Part VI, Para 3.09(b)) may be interpreted as conflicting with statute, VA regulations, and judicial precedent, the Board finds that the law and regulations must and do control. While certain provisions of the VA Adjudication Procedure Manual have been found to contain substantive rules, others are merely interpretive or statements of policy and procedure, and do confer any rights upon claimants. See Fournier v. Shinseki, 23 Vet. App. 480 (2010). Substantive rules are those that effect a change in existing law or policy or that affect individual rights and obligations; interpretive rules clarify or explain existing law or regulation. Haas v. Peake, 525 F.3d 1168 (2008). An interpretive rule merely represents the agency's reading of statutes and rules rather than an attempt to make new law or modify existing law. Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed.Cir.2001), quoting Splane v. West, 216 F.3d 1058, 1063 (Fed.Cir.2000). In Haas, the Federal Circuit held that a provision of the Adjudication Procedure Manual that did not set forth a firm legal test (for service in Vietnam), but simply provided guidance as to how an adjudicator should go about gathering information necessary to determine whether the regulatory test had been satisfied was not a substantive rule as it did not define the boundaries of VA's legal responsibility with precision. The Board finds that the provision in question in this case fits the definition of an interpretive rule or statement of procedure, and does not qualify as a substantive rule. The provision simply provides guidance to adjudicators as to what matters should be considered when an original application for VA benefits is filed. It is particularly significant that the provision uses the word "consider" rather than "adjudicate," as in "consider all chronic disabilities found the service records even if they were not claimed." The Board finds that this is an inherently discretionary term and falls more readily into the category of guidance rather than a firm legal test or rule. Indeed, this terminology is contrasted with use of the word "determine" in the current version of the VA Adjudication Procedure Manual (M21-1MR, Chapter IV, subpart ii, chapter 2, section A, topic 1), which specifies that the adjudicator should "determine service connection" for all claimed disabilities, and "consider" soliciting a claim for other chronic, unclaimed disabilities noted in the STRs. See M21-1MR, Chapter IV, subpart ii, chapter 2, section A, topic 1. A significant factor in the Board's finding that the former M21-1, Part VI, Para 3.09(b) is an interpretive rule rather than a substantive rule is a holding of the Federal Circuit in Haas, as cited by the CAVC in Fournier, 23 Vet. App. at 487, which provides that "when an Agency's interpretation of a statute is clear from existing regulations, any discrepancy between M21-1 and the regulations 'does not confer any rights' on a claimant." Here, as discussed in detail above, the pertinent statutes, judicial precedent and VA regulations governing what constitutes a claim clearly and unequivocally establish that, for a claim to be reasonably raised, the claim must express the benefit sought, and this expression must be in writing. As such, the provisions of the VA Adjudication and Procedure Manual at issue (M21-1, Part VI, Para 3.09(b)) cannot serve to reasonably raise a claim for service connection for a completely different disability than that mentioned by the Veteran. Indeed, the CAVC has dealt with the former provisions of the VA adjudication manual (M21-1, Part VI, Para 3.09(b)) in a nonprecedential case, cited here only for purposes of its reasoning and argument. In a memorandum decision, Lechliter v. Nicholson, 23 Vet. App. 503 (2007), the CAVC reasoned that: To the extent the appellant relies on VA Adjudication Procedure Manual (M21-1), Part VI, para. 3.09(b), that provision requires VA to "[c]onsider all claimed disabilities in the rating decision [and a]lso consider all chronic disabilities found in the service records even if they were not claimed." However, to grant service connection for a chronic condition, that condition must be "shown as such in service." 38 C.F.R. § 3.303(b). This requires "a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word 'Chronic.' " In this case, the only indication in his service records of depression are physicals from 1997 and 1998 wherein there is a check mark indicating that the appellant reported having "depression or excessive worry" either presently or in the past. R. at 320, 355. It is not clear from these forms whether the appellant was reporting anxiety or depression or whether he was reporting a past history of such a condition or a present occurrence. The only elaboration is in the physician's note at the end of the 1997 physical examination form. That note lists numerous conditions in the appellant's history, including "excessive worries." Hence, the SMRs do not contain any finding or diagnosis of depression, much less one that would qualify as a chronic condition. The CAVC concluded that the Board did not err in concluding that the original application for benefits did not include a claim for service connection for depression. The Board also finds in this case that it was reasonable for the RO to have found that, despite evidence of treatment for psychiatric symptoms in service, such symptoms were not chronic in service. Indeed, there is no diagnosis of depression in service - the disorder for which the Veteran later sought and was awarded service connection - the diagnosis in service was for an adjustment disorder related to the death of her spouse. While the diagnosis of adjustment disorder was included on a pre-printed form under the heading chronic illnesses, VA regulations specifically provide that, for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Under the former version of the adjudication manual (M21-1, Part VI, para. 3.09(b)), it was within the RO's discretion as to whether the in-service evidence represented a chronic disorder, and symptoms determined to be acute and transitory were specifically excluded from that manual's guidance to consider service connection for in-service chronic disorders. That provision did not specify that the adjudicator must account for every condition noted in the service records that was found by the adjudicator not to be a chronic disorder. The Board finds that it was reasonable for the RO to conclude that the Veteran's in-service adjustment disorder was not chronic, based on the clinical evidence linking her adjustment disorder to a specific traumatic event. To summarize, the Board finds that a claim for service connection for depression was not reasonably raised in September 1999. In so finding, the Board notes that there is no provision in the VA Adjudication Procedure Manual extant at the time of the September 1999 claim that can serve - in direct conflict with longstanding statute, judicial precedent, and VA regulations - to reasonably raise a claim for a different disorder than that claimed in writing. The Board also notes that the current version of the VA Adjudication Procedure Manual (M21-1MR, Chapter IV, subpart ii, chapter 2, section A, topic 1) specifically defers to applicable law on this question. Based on these findings, the Board finds that the March 2000 decision is final, and that there was no pending claim for service connection for depression at the time of the October 2006 decision. As such, the principal theory of entitlement expressed by the Veteran is without merit and must be dismissed as a freestanding claim for an earlier effective date. Leonard, 405 F3d 1333; Rudd, 20 Vet. App. 296. While final rating decisions may be collaterally attacked on the basis of clear and unmistakable error (CUE), the Veteran has not identified with any specificity the type of error that would be considered CUE if found. Her allegations amount to a failure on the part of the RO to apply the duty to assist in the development of the claim. This on its face is not CUE. See Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), aff'd on reconsideration, 6 Vet. App. 162, 163 (1994). The Board will therefore turn to the law and regulations governing effective dates to determine whether there is any earlier effective date to which she may be entitled based on the evidence subsequent to the March 2000 rating decision. 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 therefor. 38 U.S.C.A. § 5110(a). The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C.A. § 5110(b)(1). This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid 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) (2011). A claim is 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) (2011). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such an 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 claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2011). Under 38 C.F.R. § 3.157(a), a report of examination or hospitalization will be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement. However, there must first be a prior allowance or disallowance of a claim. See 38 C.F.R. § 3.157(b) (2011). After a review of the contentions and evidence in this case, the Board finds no legal basis for the assignment of an effective date for the award of service connection prior to April 12, 2006. Following the March 2000 decision, the next document received from the Veteran, nearly seven years later, was a statement requesting service connection for depression, received April 12, 2006. The statement was accepted as a claim for service connection for depression. By an October 2006 rating decision, the RO granted service connection for depression, and assigned an effective date for service connection of April 12, 2006 (the date of the receipt of the original claim for service connection for depression). The Veteran does not contend that she filed an earlier formal claim for service connection for depression. The Board has addressed her principal contention regarding an earlier implied claim and found that any such claim was implicitly denied and is now final, or in the alternative, was not reasonably raised. The Veteran's contention that VA should have implied a claim for service connection for depression from her 1999 claim for service connection for duodenal ulcer further supports the finding that the Veteran did not in fact enter a claim for service connection at any time prior to April 12, 2006. The Board finds that, prior to April 12, 2006, there was no pending claim for service connection for depression pursuant to which service connection could have been granted. As such, an effective prior to the date of receipt of the Veteran's claim for service connection for depression is legally precluded. The controlling statute and regulation provide that the effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Here, again, there is no dispute. The Veteran has asserted that entitlement arose prior to the date of claim. Therefore, the date of claim, April 12, 2006, is the later of the two dates, and is the appropriate effective date. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. See 38 U.S.C.A. § 7104(c) (West 2002); 38 C.F.R. § 20.101(a) (2011). As there is no legal basis for assignment of any earlier effective date that April 12, 2006, the Board finds that an earlier effective date for the grant of service connection for depression is not warranted. Where, as here, the law, and not the evidence, is dispositive, the appeal must be terminated or denied as without legal merit. See Sabonis, 6 Vet. App. at 430. ORDER An effective date earlier than April 12, 2006 for a grant of service connection for depression is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs