Citation Nr: 1334552 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-22 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an effective date prior to September 12, 2008, for the grant of service connection for depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active military service from March 1988 to April 1989. This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for depressive disorder and assigned a 30 percent rating, effective September 12, 2008. The issue of whether there was clear and unmistakable error in an October 1994 rating decision that denied service connection for bipolar disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's original claim of service connection for bipolar disorder was denied by the RO in an October 1994 rating decision and she did not file a notice of disagreement with that decision after she was notified and did not perfect an appeal. 2. The Veteran submitted a request to reopen her claim for service connection for a mental disability that was received by the RO on September 12, 2008. CONCLUSION OF LAW The criteria for an effective date prior to September 12, 2008, for the grant of service connection for depressive disorder have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.114, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice 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. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was provided appropriate notice in a letter dated in December 2008, prior to the rating on appeal. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or representative that demonstrate an awareness of what is necessary to substantiate a claim). The Board also finds that the duty to assist requirements have been fulfilled with regard to the evidence relevant to awarding an earlier effective date in this claim. Moreover, the Board observes that in light of the Board's findings below, there is no reasonable possibility that any additional development would aid the Veteran's claim. Consequently, no further notice or assistance to the Veteran is required to fulfill VA's duties. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Generally, the effective date of a rating and award of pension, compensation, or dependency and indemnity compensation 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) (West 2002); 38 C.F.R. § 3.400 (2013). A claim must be filed in order for any type of benefit to accrue or be paid. 38 U.S.C.A. § 5101(a) (West 2002); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). There is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. Brannon v. West, 12 Vet. App. 32 (1998) (mere presence of medical evidence of a condition does not establish an intent to seek service connection for the disability). The term claim is 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) (2013); Brannon v. West, 12 Vet. App. 32 (1998); Servello v. Derwinski, 3 Vet. App. 196 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. An informal claim must identify the benefits sought. 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. 38 C.F.R. § 3.155(a) (2013). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129 (1992). The Board is not required to conjure up issues that were not raised by an appellant. Brannon v. West, 12 Vet. App. 32 (1998). In June 1994, the Veteran filed a claim for service connection for bipolar disorder. An October 1994 rating decision denied service connection for bipolar disorder. The Veteran was informed of that decision in a letter dated October 24, 1994. However, she did not file any document that might have been construed as a notice of disagreement with the decision within the one-year period that expired on October 24, 1995. In fact, there is no further communication in the file from the Veteran until her May 2007 claim for service connection for a back disability. Additional evidence submitted by a claimant within one year of a rating decision necessitates a determination of whether the additional evidence constituted new and material evidence. 38 C.F.R. § 3.156(b) (2013); Buie v. Shinseki, 24 Vet. App. 242 (2011). However, the Veteran did not submit any additional evidence during that one year period. Therefore, the Board finds that the October 1994 rating decision became final upon expiration of the one-year period after notice of that decision. A rating decision becomes final and is not subject to revision on the same factual basis unless a notice of disagreement and substantive appeal are filed within the applicable time limits. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302 (2013). On September 12, 2008, the RO received correspondence from the Veteran requesting service connection for major depression and anxiety. After the notice and duty to assist provisions had been completed, the RO granted service connection for depressive disorder, effective September 12, 2008, the date her claim was received. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2013). There are no earlier documents in the file dated between the notice of the October 1994 rating decision and the Veteran's September 2008 claim that may be construed as an informal claim for the purpose of assigning an earlier effective date for the grant of service connection. Consequently, whether considered an original claim or a reopened claim based on the receipt of new and material evidence, September 12, 2008, is the earliest date that may be assigned for the grant of service connection for depressive disorder. Therefore, an earlier effective date is not warranted. The Board has considered the Veteran's contention that she is entitled to an effective date in 1994 when she initially filed a claim for service connection for bipolar disorder. However, the October 1994 rating decision that denied that claim is final. When a decision is final, only a request for a revision premised on clear and unmistakable error can result in the assignment of earlier effective dates. Rudd v. Nicholson, 20 Vet. App. 296 (2006). To the extent that she and her representative allege that there was clear and unmistakable error in the October 1994 rating decision, that issue has not been adjudicated by the RO and is not currently before the Board. That issue has been referred for appropriate development and action. ORDER An effective date prior to September 12, 2008, for the grant of service connection for depressive disorder is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs