Citation Nr: 1312337 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 10-44 129A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to an effective date earlier than April 28, 2009, for the grant of service connection for a mood disorder with depressive features. 2. Entitlement to an effective date earlier than April 28, 2009, for a total disability rating based upon individual unemployability (TDIU). ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2009 and August 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed the effective date assigned for the service-connected mood disorder and TDIU and those issues were addressed in the October 2010 statement of the case. FINDINGS OF FACT 1. On June 27, 2008, the VA received the Veteran's claim for service connection for a psychiatric disorder and for a TDIU. Those claims were denied in September 2008 and in January 2009 rating decisions. 2. On April 28, 2009, the Veteran filed a notice of disagreement to the January 2009 rating decision. 3. In September 2009, the RO granted service connection for a mood disorder with depressive features, with an effective date of April 28, 2009. The Veteran filed a notice of disagreement in November 2009 as to the effective date of the award. 4. In August 2010, the RO granted a TDIU, with an effective date of April 28, 2009. The Veteran filed a notice of disagreement in October 2010 as to the effective date of the award. 5. The first formal claim for service connection for a mood disorder with depressive features and for a TDIU was dated June 27, 2008. CONCLUSIONS OF LAW 1. The requirements for an effective date of June 27, 2008, for the grant of service connection for a mood disorder with depressive features have been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). 2. The requirements for an effective date of June 27, 2008, for the grant of a TDIU have been 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 I. VA's 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 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 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. Those five elements 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating and effective date from the original grant of service connection and grant of TDIU. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claims for service connection for a mood disorder and for a TDIU were granted and an initial rating and effective date were assigned in the September 2009 and August 2010 rating decisions on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating and effective date, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records and VA treatment records have been obtained and considered in the adjudication of his claims. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has also reviewed his Virtual VA claims file and notes no other evidence to review. Moreover, the Veteran's arguments on appeal are limited to his interpretation of governing legal authority. In that regard, all pertinent information and evidence is already contained in the claims file. There is no outstanding information or evidence that would help substantiate the Veteran's claims. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Generally, the effective date for an award of service connection and disability compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. An application for VA compensation must generally be a specific claim in the form prescribed by the VA Secretary, i.e., VA Form 21-526. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a) . However, any communication or action received from the claimant or certain specified individuals on the claimant's behalf which indicates an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a). Such informal claim must identify the benefit sought. Id. VA regulations provide that a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a notice of disagreement. While special wording is not required, the notice of disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201 (2012). In this case, the Veteran filed a claim to reopen his claim for service connection for a psychiatric disorder on June 27, 2008. He also requested a TDIU and submitted an accompanying VA Form 21-8940, Veteran's Application for Increased Rating Based Upon Individual Unemployability. In September 2008, the RO denied both claims. After receiving further evidence from the Veteran and obtaining a VA examination, in January 2009, the RO again denied both claims. On April 28, 2009, the Veteran submitted a statement that he was completing another VA Form 21-8940, as was requested in the January 2009 rating decision. He maintained that he was unemployable due to his service-connected gastrointestinal disability. When reviewing the April 2009 statement, the Board finds that it meets the criteria to be considered a notice of disagreement, rather than a new claim as the RO interpreted the form. The April 2009 statement specifically mentioned the January 2009 rating decision and argued that he was unable to work due to his gastrointestinal disability. Thus, it can easily be construed as dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. 38 C.F.R. § 20.201 (2012). In September 2009, the RO granted service connection for a mood disorder with depressive features and assigned a 30 percent evaluation, effective April 28, 2009. In November 2009, the Veteran filed a notice of disagreement to that decision, stating that the effective date should instead be June 27, 2008, the date he filed his claim. In August 2010, the RO granted service connection for TDIU, effective April 28, 2009. In October 2010, the Veteran filed a notice of disagreement and argued that the effective date should instead be June 27, 2008, the date he filed his claim. In October 2010, a statement of the case was issued denying his requests for earlier effective dates for service connection for his mood disorder with depressive features and for a TDIU. In this case, the Board finds that the appeal was continuously open since the date that the Veteran originally filed his claim, June 27, 2008. As discussed above, the Veteran filed a timely notice of disagreement to the January 2009 denial of the claim for a TDIU in April 2009, and thus once that claim was granted in August 2010, the effective date should have been June 27, 2008. With regard to the claim for service connection for a mood disorder with depressive features, the Board finds that that claim has also been ongoing since June 27, 2008. Although the Veteran may not have specifically disagreed with the denial of service connection for a mood disorder in the April 2009 statement as he did with the denial of a TDIU, in September 2009, less than one year after the issuance of the original January 2009 denial, a rating decision granted that claim. Thus, the appeal period had not terminated and began anew in September 2009. The Veteran filed a timely appeal to the effective date in November 2009. Thus, the January 2009 decision was not final for either claim. Therefore, the April 2009 statement did not mark the beginning of a new claim but was rather a notice of disagreement for the claim for a TDIU and was a continuing piece of evidence with regard to the claim for service connection for a mood disorder with depressive features. When reviewing the claims file, there is no earlier date than June 27, 2008, to interpret the receipt of a formal or informal claim. Prior to that date, in April 2008, a rating decision denying an increased rating for service-connected GERD was issued. There was no correspondence during that period related to a claim for TDIU or a claim for a psychiatric disorder. Rather, in November 2007, the Veteran requested only that the rating for his service-connected stomach condition be increased. Accordingly, the Board finds that the Veteran filed a claim for service connection for a mood disorder with depressive features and for a TDIU on June 27, 2008, and that claim remained open until the benefits were granted, and thus June 27, 2008, is the correct effective date. ORDER An earlier effective date of June 27, 2008, is assigned for the grant of service connection for a mood disorder with depressive features. An earlier effective date of June 27, 2008, is assigned for the grant of a TDIU. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs