Citation Nr: 1318645 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 08-28 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an effective date earlier than October 8, 2002, for the grant of service connection for anxiety disorder, not otherwise specified (NOS). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Chisholm Chisholm & Kilpatrick Ltd. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty in the military from December 1967 to October 1969. This appeal to the Board of Veterans' Appeals (Board/BVA) is from March 2006 and May 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The March 2006 decision granted the Veteran's claim for service connection for anxiety disorder, NOS (also claimed as posttraumatic stress disorder (PTSD)) and assigned an initial 50 percent rating retroactively effective from October 8, 2002, the date of receipt of a petition to reopen this previously denied claim. The May 2007 decision denied a derivative claim for an earlier effective date for this grant of service connection. As support for his claim for an earlier effective date, the Veteran testified at a hearing at the RO in August 2010 before the undersigned Veterans Law Judge (VLJ) of the Board, also commonly referred to as a Travel Board hearing. The Board subsequently issued a decision in December 2010 denying this claim for an earlier effective date, also in the process determining there was not clear and unmistakable error (CUE) in the September 1971 and February 1972 RO decisions earlier considering and denying the claim for service connection for this mental disability. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). A private law firm - Chisholm, Chisholm & Kilpatrick, Ltd. - represented him in his appeal to the Court and continues to represent him before VA; he previously was represented before VA by a Veterans Service Organization (VSO), namely, Disabled American Veterans (DAV). VA's Office of General Counsel represented the Secretary of VA in the appeal to the Court. Both parties filed legal briefs in support of overturning versus sustaining the Board's decision. After considering those briefs, the Court issued a single judge, nonprecedential, Memorandum Decision in August 2012 REVERSING the Board's December 2010 denial of this earlier effective date claim, concluding that the earlier September 1971 and February 1972 RO decisions initially considering and denying this claim were not final and binding determinations, so, in turn, the Veteran's claim has remained pending during the many years since up until it eventually was granted. The Court therefore SET ASIDE the Board's decision denying an earlier effective date for the anxiety disorder, NOS, and REMANDED the matter to the Board for further adjudication consistent with its decision. After receiving the file back from the Court, and in response to the Board's 90-day letter, the Veteran's attorney filed a motion requesting an additional 60 days to submit additional evidence and argument in support of the claim, and the Board granted the motion. The Veteran's attorney submitted this additional evidence in April 2013 and waived the right to have the RO initially consider it as the Agency of Original Jurisdiction (AOJ), preferring instead to have the Board do so in the first instance. 38 C.F.R. § 20.1304 (2012). He also waived any contestation of Veterans Claims Assistance Act (VCAA) notice errors. Along with this evidence, which included the report of a mental status evaluation by a licensed clinical psychologist, J. H. S., Ph.D., the Veteran's attorney submitted an application for a TDIU, that is, a VA Form 21-8940. One of the questions posed to J. H. S., Ph.D., in preparation for his report, was whether the Veteran has been incapable of substantially gainful employment since 1971 on account of his anxiety disorder, NOS, if not also considering conditions that are not service connected (such as his arthralgia and coronary artery disease (CAD)). 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. And when commenting on this, J. H. S., Ph.D., additionally was asked whether the employment the Veteran had had since 1971 was in a "sheltered workshop" type of environment, a presumed reference to employment that only would be considered "marginal", not substantially gainful. 38 C.F.R. § 4.18. This particular question, obviously then, concerned this derivative TDIU claim that has been raised overtly. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a request for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to a TDIU is based already has been found to be service connected, as part of a claim for increased compensation. In another rather recent case, the Court found that because the claim for a TDIU was received by VA within one year of the grant of service connection based on an initial application for benefits, the TDIU claim was part of the Veteran's initial application for benefits for that disability, not a part of a new claim for increased compensation. See Mayhue v. Shinseki, 24 Vet. App. 273 (2011). A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). See also Hurd v. West, 13 Vet. App. 449 (2000) (indicating that a TDIU claim is also a claim for increased compensation and, therefore, the effective date rules for increased compensation claims apply to a TDIU claim). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased-rating claim only when the Roberson requirements are met). But there must be cogent evidence of unemployability in the record. See Rice, citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). J. H. S., Ph.D., also was asked what the appropriate rating for the Veteran's anxiety disorder, NOS, has been since 1971 - that is, when considering the applicable VA rating criteria. J. H. S., Ph.D., surmised that a 70 percent rating was most appropriate, conceding that the criteria for an even higher 100 percent schedular rating were not satisfied. A claim for a TDIU, however, presupposes that the rating for the service-connected condition is less than 100 percent, and only asks for a TDIU because of "subjective" factors that the "objective" rating does not consider. See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994). In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but as mentioned not to impairment caused by nonservice-connected disabilities or his age. 38 C.F.R. §§ 3.341, 4.16, 4.19. See also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993); and Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). When granting service connection for the Veteran's anxiety disorder, NOS, the RO assigned an initial 50 percent rating for this disability, so a lesser rating, retroactively effective from October 8, 2002, on the premise that was the date of receipt of the petition to reopen this previously denied claim (the prior denials having been in September 1971 and February 1972). In this decision, pursuant to the Court's single judge Memorandum Decision, the Board is assigning an earlier effective date for the grant of service connection for this anxiety disorder, NOS, coinciding with the date of receipt of the Veteran's original claim for this disability on May 5, 1971. The RO therefore, in turn, will have to determine the appropriate rating for this disability from May 5, 1971, onwards up to the present. But this determination is not made until the RO effectuates this award of an earlier effective date for the underlying grant of service connection for this mental disability. It therefore would be premature for the Board to also consider in this decision whether a TDIU is warranted, especially since this is the Veteran's only service-connected disability, so the initial rating he eventually receives for this disability going forward from May 5, 1971, will determine whether his derivative TDIU claim is considered under 38 C.F.R. § 4.16(a) versus (b). Indeed, as the Court explained in Rice, if the Board determines the derivative TDIU claim requires further development before being adjudicated, the appropriate disposition is to remand the TDIU claim. VA's Office of General Counsel also has indicated that remanding the derivative TDIU claim does not preclude the Board from going ahead and deciding the claim that formed the basis of the TDIU claim. VAOPGCPREC 6-96 (Aug. 16, 1996) and VAOGCPREC 12-2001 (July 6, 2001). So this is what will occur here since the Board is deciding the claim for an earlier effective date for the grant of service connection for the anxiety disorder, NOS, but instead remanding the derivative TDIU claim. FINDINGS OF FACT 1. The Veteran's original claim for service connection for an acquired psychiatric disorder was received on May 5, 1971, so more than one year after his discharge from the military. In a September 1971 rating decision, the RO denied service connection for a neuropsychiatric disability (so inclusive of an anxiety disorder). However, the Veteran initiated an appeal of that decision by submitting a timely notice of disagreement (NOD) in November 1971. 2. Instead of issuing a statement of the case (SOC) following the submission of that November 1971 NOD, the RO issued a subsequent February 1972 rating decision continuing to deny service connection for an anxiety disorder/nervous condition. 3. In January 1973, the Veteran submitted another NOD, disagreeing with the February 1972 rating decision. 4. In February 1973, the RO issued an SOC, continuing the denial of service connection for an anxiety disorder. However, in February 1973, the RO also issued a letter advising the Veteran that he had one year to provide additional evidence, specifically treatment records, in support of his claim for service connection. 5. In April 1973, in response, he submitted additional evidence as had been requested in the February 1973 letter from the RO. 6. In response to his submission of that additional evidence in April 1973, the RO issued another rating decision that same month continuing to deny his claim for service connection for an anxiety disorder. Along with that April 1973 rating decision, the RO issued a letter advising him that he had one year from the date of issuance of that letter, specifically April 27, 1973, to submit an NOD. 7. On April 18, 1974, so within one year of the issuance of that April 27, 1973 letter, the Veteran submitted a written statement indicating he was appealing his claim to the Board. 8. His claim for service connection for an anxiety disorder, filed on May 5, 1971, was in appellate status and, therefore, was not finalized at the time of the more recent March 2006 rating decision granting service connection for this same disorder. 9. Treatment records, dating from the May 5, 1971, date of filing of his claim for service connection for an anxiety disorder indicate he had experienced anxiety symptoms since returning from Vietnam. 10. In a February 2006 VA psychiatric examination report, a VA examiner determined the Veteran's anxiety disorder was more likely than not related to his military service based, in part, on the treatment records indicating treatment for anxiety dating back to May 5, 1971. 11. J. H. S., Ph.D., also more recently has determined in the report of his April 2013 psychological evaluation that the Veteran has had the anxiety disorder dating back to 1971, when he initially filed his claim for this condition, and that it is at least as likely as not this anxiety disorder is due to or began during his service. CONCLUSION OF LAW The criteria are met for an earlier effective date of May 5, 1971, for the grant of service connection for the anxiety disorder, coinciding with the date of receipt of the Veteran's original claim for this condition. 38 U.S.C.A. §§ 5107, 5109A, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.105(a), 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist As provided by the VCAA, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). To this end, upon receipt of a complete or substantially complete application for benefits, VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist the claimant in obtaining; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). So this notice should include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - including in an SOC or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the claimant, not VA, bears the burden of proof of not only establishing there is a VCAA notice error but also, above and beyond that, of showing the error is unduly prejudicial, meaning outcome determinative of the claim. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this particular case at hand, letters satisfying the notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in November 2002 and October 2003, therefore in the preferred sequence since before adjudicating his claim for service connection in March 2006 and for an earlier effective date in May 2007. The letters informed him of the type of evidence and information required to substantiate his claim of entitlement to service connection, again, keeping in mind that was the context of his claim at that particular time, and of his and VA's respective responsibilities in obtaining this supporting evidence. Because this appeal arises from his disagreement with the effective date assigned following the granting of service connection for his anxiety disorder, NOS, no additional notice is required regarding this "downstream" issue. The Veterans Court (CAVC) and the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) have both held that, once service connection is granted, the claim as it arose in its initial context is substantiated, so the initial intended purpose of the notice service, meaning additional notice is not required concerning any "downstream" issue such as the effective date assigned for the award. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). 38 C.F.R. § 3.159(b)(3)(i) (stating there is no duty to provide VCAA notice upon receipt of an NOD). Rather, according to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008). and its progeny, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" effective date element of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue an SOC if the disagreement is not resolved, and this occurred in this particular instance. Moreover, regarding this "downstream" claim for an earlier effective date, in this decision the Board is granting an earlier effective date of May 5, 1971, coinciding with the date of receipt of the Veteran's original claim alleging entitlement to service connection for this disability. This, then, is the earliest possible effective date permitted by the effective date regulations and, therefore, the granting of an even earlier effective date is not legally possible. In a case such as this, where a claim for an even earlier effective date cannot be substantiated because there is no legal basis for such a claim, or because the undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to further assist the claimant with the claim because no amount of assistance would result in further substantiation of the claim. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (stating that 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). And as already alluded to, in his most recent April 2013 statement the Veteran's attorney waived his contestation of any VCAA errors that even arguably may have occurred in developing this claim. Hence, the Board may proceed with its readjudication of this claim, especially considering that the attorney also confirmed the Veteran does not have any additional evidence to submit. II. Analysis - Entitlement to an Effective Date Earlier than October 8, 2002, for the Grant of Service Connection for the Anxiety Disorder, NOS As reason or justification for assigning an earlier effective date, the Veteran contends that his anxiety disorder and its relationship to traumatic events that had occurred during his military service, especially while stationed in Vietnam, was patently evident even at the time of his original claim for service connection for this disorder that he filed on May 5, 1971, which unfortunately was denied in the September 1971 rating decision. He further contends that his appeal of that initial September 1971 rating decision, also a subsequent February 1972 decision, essentially vitiates any perceived finality (res judicata) of those prior decisions, in turn allowing for his claim to have remained pending for the many ensuing years up until the RO's March 2006 rating decision eventually granting his claim for this mental disability. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be 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. If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). An appeal to the Board consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal to the Board (e.g., VA Form 9 or equivalent statement). See 38 C.F.R. § 20.200 (2012). A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. See 38 C.F.R. § 20.202 (2012). As a general rule, a substantive appeal must be filed within 60 days from the date that the AOJ, which, here, is the RO, mails the SOC to the appellant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later, to perfect an appeal of any claim adjudicated by the RO. See 38 U.S.C.A. § 7105(a), (b)(1) (West 2002); 38 C.F.R. § 20.302 (2012). If an appeal is not perfected within the time specified, the RO's determination becomes final and binding on the Veteran based on the evidence then of record. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.1103 (2012). Additionally, once an RO's decision becomes final and binding, absent submission of new and material evidence, the claim may not be reopened or readjudicated by VA. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). The Veteran's claim has an extremely complicated and long procedural history. His original claim for service connection for an anxiety disorder was received on May 5, 1971, so more than one year after his discharge from the military. In a September 1971 rating decision, the RO denied service connection for an anxiety disorder. However, he initiated an appeal of that decision by submitting a timely NOD in November 1971. An NOD must express disagreement with an AOJ (RO) determination and express a desire to contest the result and must be filed in writing by the claimant with the RO within one year after the date of mailing of notice of the RO decision. 38 C.F.R. § 20.302. While special wording is not required, the NOD must be in terms that reasonably can be construed as disagreement with the determination and a desire for appellate review. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201; see also Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). Here, it was obvious from the November 1971 statement that the Veteran disagreed with the RO's then-recent denial of service connection for his "nervous condition." See id. He also indicated a desire for the RO to continue to develop his case and grant his claim. Therefore, the Board finds that his November 1971 statement constituted a timely NOD with the September 1971 rating decision on the issue of whether he was entitled to service connection for an acquired psychiatric disorder. The Court has held that the scope of a claim for service connection for a mental disability includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record). Clemons concerned VA's failure to consider a claim of entitlement to service connection for a psychiatric disorder other than the one specifically claimed, even though it shared the psychiatric symptomatology for which the Veteran was seeking service connection. The Clemons Court found that, where, as an example, a Veteran's claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record. The Clemons Court indicated that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Moreover, that NOD was timely filed, coming only some two months after the September 1971 rating decision. See 38 C.F.R. § 20.302. Thus, the appeal continued and that September 1971 rating decision did not become final and binding because the Veteran had initiated a timely appeal. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Under normal procedures, the RO should then have issued him an SOC after his submission of an NOD. Instead, the RO issued a subsequent February 1972 rating decision continuing to deny service connection for an anxiety disorder. As the RO did not issue the SOC, in January 1973 the Veteran submitted another NOD, this time disagreeing with the February 1972 rating decision. In February 1973, the RO finally issued an SOC continuing the denial of service connection for an anxiety disorder. Besides that February 1973 SOC, however, the RO also issued a February 1973 letter advising the Veteran that he had one year to provide additional evidence, specifically treatment records, in support of his claim. In April 1973, so just some 2 months later, the Veteran submitted additional evidence as had been requested in that February 1973 letter from the RO. In response to his submission of that evidence in April 1973, the RO issued an April 1973 rating decision continuing to deny his claim for service connection for an anxiety disorder. Along with that April 1973 rating decision, the RO issued a letter advising him that he had one year from the date of issuance of that letter, specifically April 27, 1973, to submit an NOD. On April 18, 1974, so within one year of the issuance of that April 27, 1973 letter, the Veteran indicated that he was appealing his case to the Board. He wrote "I would like to initiate an appeal to the Board of Veterans Appeals." In May 1974, the RO issued an additional SOC, again continuing the denial of his claim for service connection for an anxiety disorder. And, unfortunately, as he did not file what would have amounted to another substantive appeal (VA Form 9/equivalent) following his receipt of that May 1974 SOC, the RO did not in turn certify or forward his claim on to the Board as he earlier had requested. Normally, a Veteran has 60 days to perfect an appeal after the issuance of a SOC or, as already explained, until expiration of the remainder of the one-year he had following initial notification of the decision being appeal, whichever allows him the most amount of time. Yet, the 60-day period he had to perfect his appeal that began with the January 1973 SOC was stayed ("equitably tolled") by the subsequent February 1973 RO letter allowing one year for the submission of additional evidence, and his timely compliance therewith. The time to appeal effectively was extended further by the RO's issuance of the April 1973 rating decision, accompanied by a notice letter stating that he had one year to file an NOD from the date of that notice. As such, his April 1974 statement indicating he wanted to appeal to the Board (still), constituted not only a timely filed NOD to the deferred rating notice, but also, under the circumstances of this case, a timely substantive appeal in response to the January 1973 SOC, thereby completing the steps necessary to perfect his appeal to the Board. Cf. Archbold v. Brown, 9 Vet. App. 124, 132 (1996) (holding that correspondence filed by the Veteran constituted a Substantive Appeal despite being filed before he had received an SOC); see also Rivera v. Shinseki, 654 F.3d 1377, 1380 (Fed. Cir. 2011) (noting that VA has a duty to read a claimant's filings liberally and sympathetically). He did not file any additional claims for service connection for an anxiety disorder or any other psychiatric disorder until October 8, 2002. On that date, he filed an additional claim for service connection for a psychiatric disorder, which, in effect, was treated as a petition to reopen this claim. In adjudicating the October 2002 claim for service connection for a psychiatric disorder, in March 2006 the RO granted service connection for an anxiety disorder. The Veteran's appeal of the denial of the September 1971 rating decision, initially considering and denying service connection for an anxiety disorder, was still pending and in appellate status at the time of the March 2006 rating decision eventually granting service connection for this same disorder. Therefore, the appeal of the September 1971 rating decision was not finally adjudicated until the March 2006 rating decision granting his claim for service connection. See, e.g., Williams v. Peake, 521 F.3d 1348 (Fed. Cir.2008), (holding that a pending claim that has not been finally adjudicated will be terminated by the subsequent final adjudication of an identical claim). See also Beraud v. Shinseki, No. 11-726 (Vet. App. May 17, 2013) (a subsequent final adjudication of a claim terminates previous pending identical claims). But see, too, Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) and McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (indicating a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability). As already explained, the effective date for the award of compensation will be 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. If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Here, the Veteran filed his initial claim of entitlement to service connection for a psychiatric disorder, to include anxiety, on May 5, 1971, so more than a year after his November 26, 1969 discharge from service. His initial claim was not however finally adjudicated until the issuance of the March 2006 rating decision granting his claim for the same disorder as he initially had claimed. The record of evidence contains treatment records dating back to his May 5, 1971 claim indicating he had experienced anxiety since returning from his tour in Vietnam. For example, VA treatment records indicate he was admitted to the VA Medical Center (VAMC) in Shreveport, Louisiana, in April 1971 for treatment of diagnosed anxiety neurosis. During a lengthy stay at that facility, lasting until November 1971, VA examiners noted treating him for anxiety symptoms related to his service in Vietnam. More recently, in a February 2006 VA psychiatric examination report, a VA examiner specifically noted the treatment provided the Veteran for anxiety symptoms back in 1971. Having interviewed the Veteran, conducted a psychiatric examination, and reviewed the record of evidence, this VA examiner wrote the Veteran's currently diagnosed anxiety disorder was as likely as not related to his military service. In explaining the reasoning for this conclusion, this VA examiner wrote that the Veteran's anxiety disorder dated back to his service, based, in part, on the documented evidence of treatment for anxiety symptoms in 1971. Even more recently, J. H. S., Ph.D., determined in the report of his April 2013 psychological evaluation that the Veteran has had the anxiety disorder dating back to 1971, when he initially filed his claim for this condition, and that it is at least as likely as not this anxiety disorder is due to or began during his service. Therefore, the evidence of record indicates the Veteran's anxiety disorder, NOS, was in evidence at the time of his May 5, 1971 claim for service connection. But as that May 5, 1971 claim was filed more than one year after his November 26, 1999, discharge from service, the earliest possible effective date for the grant of service connection for this disability is May 5, 1971, the date of receipt of the claim. See 38 C.F.R. § 3.156(c)(3) (service connection to be granted from either the date entitlement arose or the date VA received the claim, whichever is later). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. And "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "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). See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). For these reasons and bases, the earliest possible effective date allowed by law and regulation for the grant of service connection for this anxiety disorder, NOS, is May 5, 1971, the date of the initial filing of the claim of entitlement to service connection for this disorder. ORDER An earlier effective date of May 5, 1971, is awarded for the grant of service connection for the anxiety disorder, NOS. REMAND For reasons already discussed, very recently, in April 2013, the Veteran (through his representing attorney) filed a derivative TDIU claim. They also submitted a supporting statement from J. H. S., Ph.D., addressing his findings on psychological evaluation - including as concerning the Veteran's employability both currently and in years past dating back to his 1971 claim for his mental illness. Because, in this decision, the Board has awarded an earlier effective date of May 5, 1971, for the grant of service connection for the Veteran's anxiety disorder, NOS, the RO must now in turn determine the appropriate rating for this disability as of that earlier date. And this, in turn, will determine whether the Veteran's TDIU claim is considered under 38 C.F.R. § 4.16(a) versus (b), seeing as though this at the moment is his only service-connected disability, so the only disability to be considered in determining whether he is additionally entitled to a TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. Accordingly, this derivative TDIU claim is REMANDED for the following development and consideration: After assigning an initial rating for the Veteran's anxiety disorder, NOS, as of the receipt of his initial claim for this disorder on May 5, 1971, also adjudicate his derivative TDIU claim, including considering his recently-filed April 2013 application for this additional benefit (VA Form 21-8940) along with the supporting statement from J. H. S., Ph.D., addressing the findings on psychological evaluation - including as concerning the Veteran's employability both currently and in years past dating back to his 1971 claim for his mental illness. When adjudicating this claim, consider whether the Veteran's past employment in a paper mill and apparently before that as a meter reader was substantially gainful versus just marginal in comparison. 38 C.F.R. §§ 4.16(a), 4.18. The recent statement from J. H. S., Ph.D., suggest that prior employment was in a "sheltered workshop" type environment, so not substantially gainful, seeing as though special consideration or accommodation reportedly repeatedly was made on account of the Veteran's mental illness. Therefore, depending on what initial rating is assigned for the anxiety disorder, NOS, determine whether this derivative TDIU claim should be considered under 38 C.F.R. § 4.16(a) versus (b) and, if under (b), determine whether an extra-schedular TDIU referral is warranted. If the Veteran disagrees with the initial rating assigned for his anxiety disorder, NOS, as of the May 5, 1971, filing of his initial claim for this disorder and/or if his derivative TDIU claim is not granted, then provide him an SSOC concerning these claims and give him opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these "downstream" issues. He has the right to submit additional evidence and argument concerning this derivative TDIU claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This derivative TDIU claim 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 (West Supp. 2012). ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs