Citation Nr: 1315343 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 08-25 011 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an effective date prior to March 23, 2001, for the grant of service connection for mood disorder, not otherwise specified. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran had active duty service from April 1977 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for mood disorder, not otherwise specified, effective March 23, 2001. The Veteran appeals the effective date of the award. After the Veteran's notice of disagreement with the assigned effective date was received in July 2002, the RO sent him a statement of the case in January 2003. Thereafter, the matter of whether the Veteran had filed a timely substantive appeal, to perfect his appeal to the Board, was adjudicated. Initially, the RO had determined that there was no timely filed substantive appeal, and the Veteran appealed this decision. The Board, however, in a March 2008 decision, found that a timely substantive appeal was received in August 2004, because the Veteran's actual receipt of the statement of the case was delayed until July 2004. In a March 2010 statement, the Veteran withdrew a request for a hearing before a Veterans Law Judge, and also withdrew from consideration any other submitted or inferred pending claims at that time. A July 2012 statement from the Veteran also noted his hearing request withdrawal. During the pendency of the appeal, the Veteran's representative of record has changed from the American Red Cross to Disabled American Veterans. FINDINGS OF FACT 1. In a May 2000 decision, the Board determined that new and material evidence had not been presented to reopen a previously denied claim of entitlement to service connection for a psychiatric disorder. 2. A request for reconsideration of the Board decision of May 2000 was received by the Board on March 23, 2001, which was denied; an application to readjudicate the Veteran's claim of service connection for a psychiatric disorder in light of the enactment of the Veterans Claims Assistance Act of 2000 was received by the RO on April 16, 2001. 3. In a July 2002 rating decision, the RO granted service connection for a psychiatric disorder, effective March 23, 2001. CONCLUSIONS OF LAW 1. The May 2000 Board decision, which denied the Veteran's application to reopen a previously denied claim of service connection for a psychiatric disorder is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 2. The requirements for an effective date for the grant of service connection for mood disorder, not otherwise specified, prior to March 23, 2001, have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110(a), 7104, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.400(q)(r) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided post-adjudication VCAA notice by letter, dated in September 2011. The Veteran was notified of the type of evidence to substantiate the claim for an earlier effective date. Additionally, the Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit private medical records or authorize VA to obtain private medical records on his behalf. The RO also notified the Veteran of the provisions for the effective date of a claim and for the degree of disability assignable for the claim. As for content and timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence), of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of a claim for service connection). To the extent the VCAA notice came after to the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured because after the RO provided content-complying VCAA notice, the claim was readjudicated, as evidenced by the supplemental statement of the case, dated in June 2012. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran was provided an opportunity to appear at a hearing, but he withdrew his hearing request in March 2010 and again in July 2012. The RO has obtained the service treatment records and VA records. The Veteran has not identified any additional records to obtain on his behalf. Further, given the nature of the claim for an earlier effective date, which is principally based on historical records, VA has not conducted a contemporaneous medical inquiry in an effort to substantiate the claim on appeal. 38 U.S.C.A. § 5103A(d). Indeed, a medical examination would be pointless in order to address the issue of an earlier effective date, where current medical evidence is irrelevant to the claim. The Board notes that the evidence reviewed includes statements submitted by the Veteran historically, as well as VA and private medical evidence dated prior to March 2001 that is relevant to the claim of service connection for a psychiatric disorder. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Facts and Analysis The Veteran contends that the effective date of the grant of service connection for a psychiatric disorder should be prior to March 23, 2001. He asserts that the effective date should be retroactive to the day after his separation from service in August 2981. He claims, in a July 2002 statement, that he did not receive "meaningful" medical treatment for his disorder until the few years prior to 2002 and that his judgment had been "severely impaired" since service. In an October 2002 statement, he asserted that he was "incapacited [sic] by extreme duress and found psychologically impaired" during service. Alternatively, the Veteran claims, in a September 2002 statement, that the effective date should be May 17, 2000 (the date of the Board decision) due to his mental incapacity since service, which made him incapable of "dealing" with the issues regarding the submission of new and material evidence at that time. The law provides that the effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400 (b)(2). In this case, the Veteran was separated from active duty in August 1981. The claims file shows that his initial compensation claim relative to a psychiatric disorder was received by the RO in September 1984. The file discloses no earlier formal or informal claim for this particular benefit. 38 U.S.C.A. § 5101; 38 C.F.R. §§ 3.151, 3.155; Crawford v. Brown, 5 Vet. App. 33 (1993). This original claim for service connection for a psychiatric disorder was denied by the RO in a June 1985 rating decision. The Veteran initiated an appeal of the decision in February 1986, and the RO issued him a statement of the case in March 1986. The Veteran, however, did not perfect his appeal to the Board with the filing of a substantive appeal (VA Form 9). Then, in May 1996, the Veteran filed an application to reopen his claim for a psychiatric disorder, claimed as major depression and narcissistic personality disorder. In a September 1996 rating decision, the RO denied his application to reopen a claim of service connection for a psychiatric disorder on the basis that new and material had not been submitted. The Veteran perfected an appeal of this decision to the Board. In a May 2000 decision, the Board denied service connection for a psychiatric disorder, on the basis that new and material evidence had not been submitted to reopen the claim. The Board decision in May 2000 became final by operation of law. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In a March 23, 2001 statement, the Veteran requested reconsideration of the Board's decision, but the Board in April 2001 denied the reconsideration request. The Veteran did not appeal the Board's May 2000 decision to the United States Court of Appeals for the Federal Circuit. Previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a). The Veteran has not asserted a claim of clear and unmistakable error in the Board's May 2000 decision. Inasmuch as the Board decision, denying the claim of service connection for a psychiatric disorder on the basis of no new and material evidence to reopen the claim, is final, the effective date of the grant of service connection for a psychiatric disorder must be determined in relation to the subsequent claim to reopen. A final decision can be reopened upon the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. The law provides that when a claim is reopened with new and material evidence after a final disallowance, the effective date of service connection will be the date of VA receipt of the claim to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(q), (r). After the last final disallowance of the psychiatric disorder claim by the Board in May 2000, the next application to reopen the claim of service connection for a psychiatric disorder was received from the Veteran's representative, on his behalf, on April 16, 2001. In that statement, it was asserted that the Veteran did not agree with the Board's denial of reconsideration and that he desired to have his claim readjudicated by the RO at the earliest possible time, given the recent enactment of the Veterans Claims Assistance Act of 2000. Thereafter, in a July 2002 rating decision, the RO reopened the claim based on new and material evidence received since the May 2000 Board decision, and on consideration of all the evidence the RO granted service connection for mood disorder, not otherwise specified, effective on March 23, 2001. The new evidence included private and VA medical opinions relating that the Veteran's current psychiatric disorder pre-existed service and was permanently worsened during service. In this case, the RO could not have assigned, under the law, an earlier effective date for the grant of service connection for a psychiatric disorder. Between the date of the final Board decision of May 2000 and the date of the RO's receipt of the application to reopen the psychiatric disorder claim on April 16, 2001, the file discloses only the March 23, 2001 statement, requesting reconsideration of the Board's May 2000 denial of the Veteran's claim. Such a statement may be construed as evidence of the Veteran's intent to reopen his psychiatric disorder claim, which was then followed by his formal application for such in April 2001. Thus, as noted, after a final disallowance, the operative date for purposes of assigning an effective date for an award of service connection is the date of VA receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q), (r). For the above-stated reasons, the effective date for the award of service connection for mood disorder, not otherwise specified, may be no earlier than March 23, 2001. ORDER An effective date prior to March 23, 2001, for the grant of service connection for mood disorder, not otherwise specified, is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs