Citation Nr: 1311840 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 09-32 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an effective date earlier than October 10, 2007, for assignment of a 100 percent combined evaluation for service-connected disabilities. 2. Entitlement to an effective date earlier than December 31, 2007, for the grant of service connection for major depression and anxiety. REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Esq. ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Veteran served on active duty from February 1951 to January 1955. This matter comes before the Board of Veterans Appeals (Board) on appeal of an April 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine that granted service connection for a lumbosacral spine disability (severe degenerative joint disease), a cervical spine disability (residual of postoperative laminectomy for ruptured disc, with severe degenerative disc disease and degenerative joint disease), and radiculopathy of the bilateral upper and bilateral lower extremities. The RO assigned individual "staged" ratings for these disabilities that constitute a combined initial 50 percent rating effective from September 20, 2001, and a combined 100 percent rating effective from October 10, 2007. On appeal, the Veteran asserts entitlement to a combined 100 percent rating "for unemployability" from September 20, 2001. Also on appeal is an August 2009 RO rating decision that granted service connection for major depression and anxiety disorder effective from December 31, 2007. The Veteran contends an earlier effective date of service connection should have been granted. In his substantive appeal, received in September 2009, the Veteran requested a hearing before a Member of the Board at the RO. The Veteran was duly scheduled for a videoconference hearing from the RO in January 2013, but his representative submitted a request that the hearing be rescheduled due to the Veteran's infirmity. As memorialized in a January 2013 Report of Contact, the RO thereupon contacted the Veteran to discuss rescheduling the hearing, during which conversation the Veteran stated that he wanted to withdraw his request for hearing. See 38 C.F.R. § 20.704(e) (2002). The Board's decision on the issue of entitlement to earlier effective date for service connection for major depression and anxiety is set forth below. The issue of entitlement to an effective date earlier than October 10, 2007, for assignment of a 100 percent combined evaluation for service-connected disabilities is addressed in the Remand that follows the Order section of the decision below. That issue is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. A rating decision in March 1994 denied entitlement to service connection for a nervous disorder. In a decision issued in January 2009, the Board found the March 1994 rating decision was final. 2. The Veteran filed a claim for service connection for anxiety that was received by the RO on December 31, 2007, and service connection was eventually granted effective from that date by the April 2009 rating decision on appeal. 3. There were no formal or informal claims for service connection for a psychiatric disorder received between March 1994 and December 2007. CONCLUSION OF LAW The criteria for an effective date earlier than December 31, 2007, for a grant of service connection for major depression and anxiety are not met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied under the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The VA is required to assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The VA is required to notify a claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, the 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, the VA will attempt to obtain on behalf of the claimant. In addition, the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant be provided "at the time" of, or "immediately after," the VA's receipt of a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). VA must also notify the claimant that, should service connection be awarded, a disability rating and an effective date for the award of benefits will be assigned. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The United States Court of Appeals for Veterans Claims (Court) has held that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. 473, 490-491; see also Hartman v. Nicholson, 483 F.3d 1311, 1314-1315 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007). In any event, the Veteran has not alleged or demonstrated any prejudice with regards to the content or timing of notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice irregularity and clarifying that the burden of showing that an error is harmful or prejudicial normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has also made reasonable efforts to obtain relevant records adequately identified by the Veteran. In this regard, the claims file includes service morning reports, post service treatment records, VA examination reports, hearing transcripts, and lay statements. The Veteran has not identified any existing evidence that should be associated with the record. The Board notes that the Veteran's service treatment records are not on file and were presumably destroyed by fire. A Formal Finding of Unavailability of Service Records was prepared in October 2005. In any event, the Veteran has not alleged treatment in service for a psychiatric disorder, and the question herein decided pertains to the date claims were filed. Although the Veteran has participated in hearings concerning underlying claims for service connection, he has not participated in a hearing with regard to the issue being decided herein. As indicated in the Introduction, he has waived a hearing on this matter. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds the duties to notify and assist have been satisfied and will proceed to the merits of the Veteran's appeal. Applicable Laws and Regulations The effective date for an award of service connection for claims received within 1 year after separation from service shall be the day following separation from service, or date entitlement arose; otherwise, the effective date shall be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b). The effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). A specific claim in the form prescribed by the Secretary 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 Supp. 2005); 38 C.F.R. § 3.151(a) (2012). 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) (2012). Any communication or action indicating an intention to apply for one or more benefits under the laws administered by VA from a claimant, his or her duly appointed representative, a Member of Congress, or some person acting as next friend of the claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155; Kessel v. West, 13 Vet. App. 9 (1999). 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) (2012). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evidence and Analysis Historically, the Veteran submitted an original claim for nonservice-connected pension in March 1976, noting that he suffered from back problems and nervous problems that had their onset years after service. The RO issued a rating decision in May 1976 that denied entitlement to pension. The Veteran was notified of the denial but did not appeal, nor did he submit any material evidence within the appeal period. See 38 C.F.R. § 3.156(b) (new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if an appeal has been filed, will be considered as having been as having been filed in connection with the claim that was pending at the beginning of the appeal period). The Veteran submitted a claim for service connection for a "nervous condition" in September 1993. In March 1994, the RO denied service connection for a "nervous condition" on the merits. The Veteran was notified of the denial but did not appeal or submit material evidence within the appeal period. 38 C.F.R. § 3.156(b) The Veteran filed a request in September 2001 to reopen his claim for service connection for his back, neck, and arthritis. He listed symptoms of these disabilities, but made no mention of a psychiatric disorder, nor did his request refer to reopening a claim for a psychiatric disorder. In November 2002 the RO denied reopening the claim for service connection for a cervical spine disorder. The Veteran appealed, and in August 2005 the Board issued a decision denying reopening of the claim for a cervical spine disorder. The Board's decision was vacated based on a Joint Motion of the Parties in April 2007, and service connection for cervical and lumbar spine disorders was eventually granted effective from September 2001. Nothing in the evidence relating to this claim, including actions by the Board or filings to the Court, refers to a pending unresolved claim for service connection for a psychiatric disorder. The Veteran submitted a claim for service connection for anxiety neurosis that was received by the RO on December 31, 2007. The RO issued a rating decision in July 2008 that denied reopening the claim, based on a determination that new and material evidence had not been received. The Veteran appealed to the Board. In January 2009 the Board reviewed the Veteran's appeals for service connection for a cervical spine disability, a lumbosacral spine disability and anxiety neurosis. The Board held that the March 1994 rating decision denying service connection for a psychiatric disability was final. The Board granted service connection for the claimed lumbosacral and cervical spine disabilities, and reopened the claim for anxiety neurosis. The Board remanded the claim for service connection for anxiety neurosis back to the RO for development of the merits, and the April 2007 rating decision on appeal granted service connection effective from December 31, 2007, the date the request to reopen was received. Service connection was granted on the basis of new medical opinion stating that the Veteran's psychiatric symptoms were residual to emotional trauma relating to a motor vehicle accident in service. Careful review of the file from March 1994 to December 2007 does not show the Veteran submitted a formal or informal claim of service connection for a psychiatric disorder during that period, nor has the Veteran cited or alluded to such an unresolved claim. Indeed, despite being represented by an attorney during the course of this claim, neither the Veteran nor his attorney has submitted any specific theory of entitlement to an earlier effective date, other than the fact that he wants the date to go back to September 20, 2001. By the clear meaning of 38 U.S.C.A. § 5110, and its implementing regulation 38 C.F.R. § 3.400(q)(1)(ii), the effective date for a grant of service connection cannot be prior to the date of receipt of the application to reopen. The Veteran's attorney has stated, without elaboration, that an effective date of September 20, 2001 is sought. As noted above, the Veteran filed a claim for service connection and/or to reopen a back, neck and arthritis disability. Review of that claim reveals no reference to a psychiatric disability. As such, the September 2001 claim does not identify that benefits for a psychiatric disability were being sought. 38 C.F.R. § 3.155. Thereafter, a claim seeking service-connected benefits for a psychiatric disorder was not received until December 31, 2007. In sum, based on the evidence and analysis above, the Board finds that the proper effective date for the grant of service connection for major depression and anxiety is December 31, 2007, the date the reopened claim for service connection for a psychiatric disorder was filed. Accordingly, the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER An effective date earlier than December 31, 2007, for a grant of service connection for major depression and anxiety is denied. REMAND The April 2009 rating decision on appeal granted service connection for a lumbosacral spine disability, a cervical spine disability and radiculopathy of the bilateral upper and lower extremities. The RO assigned "staged" initial disability ratings that result in a combined initial rating for service-connected disabilities of 50 percent from September 20, 2001, increasing to a combined 100 percent rating effective from October 10, 2007. The Veteran's Notice of Disagreement (NOD), filed by his attorney, does not challenge the individual ratings assigned to the various disabilities. Rather, the NOD asserts the Veteran should be awarded an earlier effective date for "100% unemployability." The attorney stated that the effective date should be September 20, 2001. Thus, the Board construes the NOD as challenging the effective date of his total rating by claiming that he is entitled to a total rating based on unemployability prior to the combined schedular rating effective October 10, 2007. The Veteran's disability ratings prior to October 2007 do not meet the schedular criteria for TDIU under the provisions of 38 C.F.R. § 4.16(a), and as noted above, the Veteran's attorney did not appeal the individual evaluations assigned. However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. Therefore, if the RO determines that the facts support a finding of unemployability due solely to service-connected disabilities prior to October 2007, the RO must submit the file to the Director, Compensation and Pension Service, for extra-schedular consideration. See 38 C.F.R. § 4.16(b). The RO has not previously adjudicated a claim for a TDIU for the period in question, and has not advised the Veteran of the elements required to show entitlement to such benefit. To avoid prejudice to the Veteran, he must be provided appropriate VCAA notice. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should provide VCAA notice concerning the information and evidence necessary to substantiate a claim for TDIU for the period prior to October 10, 2007. 2. The RO should also undertake any other development it determines to be warranted. 3. Then, the RO should adjudicate the Veteran's claim for a TDIU from September 20, 2001 to October 10, 2007, in light of all pertinent evidence and legal authority, to include extraschedular consideration under the provisions of 38 C.F.R. § 4.16(b). If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case and be given an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified but he has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim has been advanced on the Board's docket and 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. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs