Citation Nr: 1318620 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 10-41 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date prior to January 28, 2008, for assignment of a 50 percent rating for service-connected depression. ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1982 to March 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Petersburg, Florida. This issue was previously remanded by the Board in January 2010 in order for the agency of original jurisdiction (AOJ) to issue a statement of the case regarding the issue of entitlement to an earlier effective date for the award of an increased rating for depression. A statement of the case on this issue was issued by the RO in August 2010. The substantive appeal, on VA Form 9, submitted in September 2010, indicated that the Veteran is appealing the 2008 rating decision regarding the effective date of January 28, 2008 for the 50 percent rating for depression. Thus, the required development has been completed and this issue is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). When previously before the Board on this and other issues, the Veteran was represented by a private attorney. In March 2011, however, this private attorney notified VA that she no longer represented the Veteran. The Veteran was sent a March 2013 letter to determine if she wished to appoint another representative or wished to proceed without representation. She has not, to date, responded, and is presumed to desire no further representation at this point in time. FINDINGS OF FACT 1. In a May 2007 rating decision, the RO granted the Veteran service connection for depression, assigned a 30 percent initial rating effective from October 31, 2006. 2. On January 28, 2008, the Veteran filed a claim for an increased rating for her depression. 3. The competent evidence of record supports a 50 percent disability rating for the period between October 31, 2006, and January 28, 2008. CONCLUSION OF LAW The criteria for entitlement to an effective date of October 31, 2006, and no earlier, for the award of a 50 percent rating for depression have been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.156, 3.340, 3.341, 3.400, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For the reasons to be discussed, the Board finds that VA has satisfied its duties to the appellant under the VCAA. A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The issue on appeal arises from a notice of disagreement with a rating decision which granted a disability rating of 50 percent for depression. As such, the Veteran's filing of a notice of disagreement with the effective date assigned does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a). See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). Rather, the Veteran's appeal as to the effective date assigned triggers VA's obligation to advise the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. 38 U.S.C.A. §§ 5104, 7105. In a February 2008 letter, the RO provided the Veteran with the general criteria for the assignment of a disability rating and an effective date. Additionally, this initial notice was issued prior to the June 2008 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant, and all required notice has been provided. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has also obtained all relevant evidence made known to the agency by the Veteran. The Veteran's service treatment records are associated with the claims file, as are VA medical records. The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Earlier Effective Date The Veteran seeks an effective date prior to January 28, 2008, for the award of a disability rating of 50 percent for her service-connected depression. She contends an increased rating was warranted prior to this date, based on VA treatment records, and additionally, such evidence constitutes a prior unadjudicated informal claim. Unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. For an increased rating claim, the effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. §§ 3.400(o)(1) and (2) (2012). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107 (West 2002). In the present case, a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, was received and date-stamped on January 28, 2008 by the RO. This form has been accepted by VA as an increased rating claim for her depression. Upon review of the claims file, the Board notes that service connection for depression was originally awarded by the RO within a May 2007 rating decision. Notice of this rating decision was provided to the Veteran in June 2007. The award of service connection for depression was made effective from October 31, 2006, based on a claim received by the RO on that date, and a rating of 30 percent was assigned. In June 2007, a statement was received from the Veteran in which she asserted that an increase in her disability rating for depression was warranted. The RO then issued an August 2007 rating decision which denied a disability rating in excess of 30 percent for this disability. No additional claims or notices of disagreement regarding her service-connected depression were received until the VA Form 21-8940 was filed on January 28, 2008. Upon review of the totality of the record, the Board finds that an earlier effective date, to October 31, 2006, is warranted for an increased rating to 50 percent. The Board notes that, pursuant to 38 C.F.R. § 3.156(b), new and material evidence which is received prior to the expiration of the appeals period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b) (2012). As applied to the present appeal, finality had not yet attached to the May 2007 rating decision at the time the January 2008 claim was received, as the one year appeals period had not yet expired. See 38 U.S.C.A. § 7105(b) (West 2002). Thus, the January 2008 claim, and any associated evidence, must be considered as having been filed in connection with the claim which was the subject of the May 2007 rating decision. As noted above, the May 2007 rating decision was initiated by a claim received on October 31, 2006. Thus, under 38 C.F.R. § 3.156(b), a date of claim of October 31, 2006, may also be recognized for the Veteran's increased initial rating claim, as it is accepted by the Board as having been filed in conjunction with the prior pending May 2007 rating decision. Having recognized a prior date of claim, the Board next finds that assignment of a 50 percent initial rating back to October 31, 2006, is warranted, and a staged rating need not be assigned. See Fenderson v. West, 12 Vet. App. 119 (1998) (recognizing VA's authority to award staged ratings when granting initial ratings). Upon review of the record and affording the Veteran the benefit of the doubt, the medical evidence of record supports the award of a 50 percent rating prior to January 28, 2008. For example, 2007 VA clinical notes indicate the Veteran has experienced recent struggles with drug and alcohol abuse, and reported such symptoms as anxiety, social isolation, and crying spells. The Veteran has also reported an inability to leave her house and an inability to tolerate more than moderate social interaction. Though a layperson, she is competent to report such observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Thus, granting all benefit of the doubt to the Veteran, the Board finds that assignment of an effective date of October 31, 2006, for the award of a 50 percent rating for depression is warranted. The Board also finds that entitlement to either an effective date prior to October 31, 2006, or an initial rating in excess of 50 percent as those issues are not in appellate status. In her notice of disagreement and other writings, the Veteran has asserted that she initiated her service connection claim for depression as early as 2001, and thus an effective date back to that year is warranted. As noted above, however, the Veteran was awarded, within the May 2007 rating decision, an effective date of October 31, 2006 for the grant of service connection for depression, and she did not appeal this assigned effective date in a timely fashion. Thus, the May 2007 rating decision is final as to the effective date assigned for the award of service connection for depression and, in the absence of clear and unmistakable error, that result may not be revisited. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (where a claim for an earlier effective date represents disagreement with an effective date assigned pursuant to a final decision, in the absence of an attempt to vitiate the finality of that decision through an allegation of clear and unmistakable error, the claimant has merely raised a "freestanding" effective date claim that cannot remove the finality of the prior decision). Additionally, the Board finds on the same basis that the Veteran did not perfect an appeal as to the RO's assignment of a 50 percent disability rating within June 2008 rating decision, and thus that decision is final as to the 50 percent rating assigned therein. Id. In conclusion, an effective date of October 31, 2006, and no earlier is granted for the award of a 50 percent rating for the Veteran's service-connected depression. ORDER Entitlement to an effective date of October 31, 2006, for the award of a disability rating of 50 percent for service-connected depression is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs