Citation Nr: 1335111	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  13-00 790	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to an effective date earlier than July 8, 2008, for the grant of service connection of dysthymia.

2.  Entitlement to an initial rating in excess of 30 percent for dysthymia.


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Attorney at Law


ATTORNEY FOR THE BOARD

L. Barstow, Counsel



INTRODUCTION

The Veteran had active military service from November 1952 to September 1954.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the VA Regional Office (RO) in Detroit, Michigan.  

A Board decision in June 2012 for other issues referred the Veteran's January 2012 claim for entitlement to an annual clothing allowance pursuant to 38 U.S.C.A. § 1162.  It does not appear that this issue has yet been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is again referred to the AOJ for appropriate action.  

The issue of entitlement to an initial rating in excess of 30 percent being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the VA RO.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1.  The earliest evidence of a diagnosis of dysthymia was in November 1999.

2.  A claim for service connection for a psychiatric disorder was filed on June 27, 2001.


CONCLUSION OF LAW

The criteria for an effective date of June 27, 2001, but no earlier, for the grant of service connection for dysthymia have been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

The VA has duties to notify and assist claimants 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) (2013).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The 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.  Such notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The Veteran was notified in letters dated in July 2001, October 2003, August 2004 and July 2007 regarding the type of evidence necessary to establish his claim.  He was instructed how to establish service connection.  The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf.  The July 2007 letter notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

The Board notes that the Veteran's claim arises from his disagreement with the effective date assigned following the grant of service connection.  Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Regardless, the July 2007 letter informed the Veteran of the criteria for assigning an effective date.  See Dingess/Hartman, 19 Vet. App. 473.
Regarding VA's duty to assist, VA obtained the Veteran's post-service medical records.  An April 2001 report from the National Personnel Records Center (NPRC) indicates that the Veteran's service treatment records (STRs) were among those thought to have been destroyed in a 1973 fire at NPRC.  In cases where records are lost or presumed lost, a heightened duty is imposed on the Board to consider the applicability of the benefit of the doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when the veteran's medical records have been destroyed.  See Russo v. Brown, 9 Vet.App. 46 (1996).  

Pertinent VA examinations were obtained in July 2005 and July 2009.  38 C.F.R. § 3.159(c)(4).  The examinations obtained in this case are sufficient, as the examiners conducted a complete examination, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorders.  The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met.  38 C.F.R. § 3.159(c)(4). 

VA has no duty to inform or assist that was unmet.  The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder.  

II.  Analysis

The Veteran's contentions throughout this appeal indicate that he believes an effective date earlier than July 8, 2008, is warranted as his initial claim was received on June 27, 2001.  See, e.g., January 2013 substantive appeal.

The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400 (2013).

The Board notes that a specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 C.F.R. § 3.151 (2013).  The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit.  38 C.F.R. § 3.1(p) (2013).  "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA.  38 C.F.R. § 3.1(r).  Any communication or action indicating an intent to apply for a benefit may be considered an informal claim.  38 C.F.R. § 3.155 (2013).

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such an informal claim must identify the benefit 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.  If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(a).

According to post-service treatment records, the Veteran was diagnosed with adjustment disorder as earlier as August 1996.  The earliest evidence of a diagnosis of dysthymic disorder was a record dated in November 1999.  A VA physician provided that diagnosis and indicated that the Veteran's VA treatment records documented the Global Assessment of Functioning (GAF) scores.  The record does not specifically indicate that the diagnosis was rendered in accordance with the Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV).  

The Veteran's claim seeking service connection for a nervous condition was received by the RO on June 27, 2001.

The Veteran was afforded a VA examination in July 2005.  He was diagnosed with alcohol dependence.  The examiner indicated that the Veteran did not meet the criteria for a diagnosis of posttraumatic stress disorder (PTSD), but did not discuss other psychiatric disorders.  

The Board previously denied service connection for a dysthymic disorder in a July 2007 decision by finding that the evidence did not show a DSM-IV diagnosis of a dysthymic disorder.  The Veteran subsequently appealed the denial to the United States Court of Appeals for Veterans Claims (Court).  In an Order dated in June 2008, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision.  The JMR indicates that both parties submitted that the November 1999 record showing that the Veteran's GAF scores were documented in his treatment records was indicative that the DSM-IV criteria were applied.  Both parties also submitted that as the physician was at the VA, the November 1999 physician should have been aware that VA uses the DSM-IV when rendering psychological diagnoses.

A VA treatment record dated July 8, 2008, again shows a diagnosis of dysthymic disorder as well as PTSD.  This record suggests that the diagnosis was in accordance with the DSM-IV as it provided diagnoses for Axis I, II, III, IV and V.  At a VA examination in July 2009, a diagnosis of dysthymic disorder was provided and a positive nexus opinion was provided.  In providing a positive opinion, the examiner commented that the Veteran reported having problems sleeping after returning from service in Korea and that he began drinking for some time.  He also reported being treated off and on for depression.  The examiner opined that at the present time, the Veteran had symptoms of depression.  

The May 2011 rating decision on appeal provided an effective date of July 8, 2008, based on the VA treatment record noted above showing a diagnosis of dysthymic disorder seemingly in accordance with the DSM-IV.  

Based on a review of the evidence, the Board concludes that an effective date of June 27, 2001, but no earlier, is warranted.  As noted above, the Veteran's claim was received by the RO on June 27, 2001.  The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400.

In this case, when affording the Veteran the benefit-of-the-doubt, the Board concludes that the later date is the date the claim was received.  VA treatment records prior to June 27, 2001, show diagnoses of psychiatric disorders, including a diagnosis of dysthymic disorder in November 1999.  The Board acknowledges that the November 1999 record does not specifically indicate that the diagnosis was in accordance with the DSM-IV, as required for service connection for a psychiatric disorder as per 38 C.F.R. § 4.125 (2013).  However, as discussed in the JMR, since the record shows that the Veteran's GAF scores were documented in his treatment records, and as VA uses the DSM-IV in rendering psychiatric diagnoses, when affording the Veteran the benefit-of-the-doubt, the Board concludes that the Veteran had a diagnosis of dysthymic disorder as early as November 1999.  

In reaching the conclusion that the Veteran had dysthymia prior to filing his claim in June 2001, Board acknowledges that the July 2005 VA examiner indicated that the Veteran did not have dysthymia, but instead only had a psychiatric disorder of alcohol independence.  However, for the reasons set forth above, the Board concludes that the November 1999 diagnosis is valid.  The July 2005 VA examiner did not address the November 1999 treatment record or even the August 1996 record showing adjustment disorder to explain why their diagnosis was more valid than the other diagnoses.  Furthermore, the July 2009 examiner's opinion suggests that the Veteran has had symptoms even prior to that diagnosis as evidenced by using the Veteran's reports of having problems sleeping since service as well as being treated off and on for depression in providing a rationale for the positive opinion.  As such, the Board concludes that the Veteran has had dysthymia prior to filing his claim in June 2001.

Therefore, in this case, dysthymia was diagnosed in November 1999; the claim was received on June 27, 2001.  As the effective date is the later of the two dates, the Board concludes that an earlier effective date of June 27, 2001, but no earlier, is warranted.

ORDER

Entitlement to an effective date of June 27, 2001, but no earlier, for the grant of service connection for dysthymia is granted.


REMAND

Regrettably, a remand of the issue of an initial rating in excess of 30 percent for dysthymia is necessary.  For the reasons set forth above, the Board has granted an earlier effective date of June 27, 2001, for the award of service connection for dysthymia.  The RO has not yet had the opportunity to assign an initial disability rating for the Veteran's dysthymia as of this new effective date.  As such, the Veteran's appeal for a higher initial rating must be remanded so that a disability rating may be assigned for the new time period under review.

Since the last examination was in 2009 and as a remand is necessary, the Veteran should be afforded a new VA examination to ascertain the current level of this disability.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted).

The most recent treatment records from the VA Medical Center (VAMC) in Saginaw, Michigan are dated in August 2009.  Accordingly, on remand, records of any ongoing VA treatment that the Veteran may be receiving should be obtained.  
Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  After obtaining the appropriate release of information forms where necessary, procure records of psychiatric treatment that the Veteran has recently received.  The Board is particularly interested in records of such treatment that the Veteran may have received from the Saginaw VAMC.  If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file.  All such available reports should be associated with the claims folder.

2.  Accord the Veteran an appropriate VA examination to determine the current level of severity of his service-connected dysthymia.  His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination.  All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file.  

The examiner should provide an opinion concerning the current degree of social and industrial impairment resulting from the service-connected dysthymia.  In addition, the examiner should provide a GAF score with an explanation of the significance of the score assigned.  The examiner should assign a GAF score for the Veteran's service-connected dysthymia consistent with the DSM-IV.

The examiner should include a complete rationale for the findings and opinions expressed.  If the examiner cannot provide an opinion without resorting to mere speculation, such should be stated along with a supporting rationale.

3.  Ensure that the examination report complies with (answer the questions posed in) this Remand.  If the report is insufficient, it should be returned to the examiner for corrective action, as appropriate.

4.  Then, readjudicate the issue on appeal, to include assessing the severity of the Veteran's dysthymia from the new effective date of service connection, June 27, 2001, to the present day.  If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond.  The case should then be returned to the Board for further consideration.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  

This 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).



____________________________________________
MILO H. HAWLEY 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs