Citation Nr: 1339140 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 11-21 217 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial rating in excess of 40 percent for service-connected major depression/severe anxiety. 2. Entitlement to an effective date earlier than May 3, 2010 for a grant of service connection for chronic obstructive pulmonary disease (COPD). REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to June 1972. He also had a period of initial active duty training (IADT) from February 1969 to October 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2010 and May 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which respectively, granted service connection for major depression/severe anxiety at 40 percent, effective June 11, 2006, and granted service connection for COPD at 60 percent, effective May 3, 2010. A subsequent June 2013 rating decision increased the Veteran's rating for COPD to 100 percent, effective May 3, 2010. The issue of a rating in excess of 40 percent for major depression/severe anxiety is being REMANDED to the RO. VA will notify the appellant if further action on his part is required. FINDING OF FACT The Veteran submitted a claim for service connection for major depression on June 11, 2006, which may reasonably be considered as raising a claim for service connection for COPD as secondary to his depression. CONCLUSION OF LAW The criteria for a June 11, 2006 effective date for the grant of service connection for COPD are met. 38 U.S.C.A. §§ 5103, 5103A, 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.151, 3.155, 3.400 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. However, inasmuch as this decision grants the appellant's claim for an earlier effective date, there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. Analysis Generally, the effective date of an evaluation 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 the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. When an application for disability compensation is received within one year of the date of the Veteran's discharge or release from service, the effective date of such award shall be the day following the Veteran's release. 38 U.S.C.A. § 5110(b)(1). The term "application," while not defined in the statute, is broadly construed by regulation 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). Where a formal claim has already been allowed, certain submissions will be accepted as an informal claim such as a report of examination or hospitalization by the VA. 38 C.F.R. §§ 3.157(b)(1)-(b)(3). Furthermore, any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim provided that such informal claim identify the benefit being sought. 38 C.F.R. § 3.155(a). See Brannon v. West, 12 Vet. App. 32, 34 (1998). In determining the effective date of award, the Board is required to look to all communications in the file which may be construed as a formal or an informal claim and, then, to all other evidence in the record to determine the "earliest date of which," within the year prior to the claim, the increase in disability was ascertainable. Quarles v. Derwinski, 3. Vet. App. 129, 134 (1992). The Board notes that is has reviewed all of the evidence in the Veterans claims files and in "Virtual VA." Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that he should be granted an earlier effective date for his service-connected COPD. He has suggested that the effective date should be the date of his claim for service connection for major depression/severe anxiety, June 11, 2006, as the issue of COPD was "part and parcel" of such claim. See August 2011 statement. On May 3, 2010, the Veteran filed a new claim for service connection for COPD as secondary to service-connected major depression. A May 2011 rating decision awarded the Veteran service connection for COPD at a disability evaluation of 60 percent. The 60 percent rating was effective May 3, 2010, the date of receipt of the Veteran's formal claim for service connection for COPD. In June 2013, the RO increased the Veteran's disability evaluation to 100 percent, effective May 3, 2010. A review of the claims file, including both informal and formal communications from the Veteran, discloses evidence of an earlier claim for service connection for COPD. Specifically, a June 11, 2006 claim for service connection for major depression also includes a statement from the Veteran that, "I also have emphysema as a result of acquiring a cigarette habit during this time of mental duress for me." The Board finds this submission by the Veteran to be a claim for service connection for COPD as secondary to depression. 38 C.F.R. §§ 3.1(p), 3.155(a). Therefore, the Board finds that the Veteran is entitled to an earlier effective date of June 11, 2006 for his grant of service connection for COPD. The Board finds that the Veteran is not entitled to an effective date earlier than June 11, 2006, as there is no evidence of informal or formal communications from the Veteran prior to this date indicating an intent to file a claim for service connection for COPD. Accordingly, for these reasons and bases, the Board finds that the preponderance of the evidence supports the Veteran's claim for an effective date of June 11, 2006 for his grant of service connection for COPD. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER An earlier effective date of June 11, 2006 for the grant of service connection for COPD is granted. REMAND The Veteran contends that his service-connected major depression/severe anxiety warrants an increased rating. In support of this claim, he has submitted a statement from a VA psychiatrist indicating that "it is at least as likely as not that [the Veteran's] major depression with severe anxiety has resulted in occupational and social impairment with deficiencies in many areas." The psychiatrist noted that the Veteran has reduced reliability and productivity due to his symptoms of sadness, memory difficulties, some disturbance in abstract thinking, and difficulties in social relationships. The psychiatrist further noted that the Veteran was recently promoted to a "GS 12 position and is now making complex decisions about contracting" and that "his marriage is continuing and has been sustaining him and does not look like it is going to fail." See January 2011 statement. The Veteran was last afforded a VA examination with respect to his psychiatric disability in December 2009. As the January 2011 letter is indicative of a possible change in the severity of the Veteran's service-connected major depression/severe anxiety, the Board finds that a contemporaneous VA examination to determine the current level of severity of such disability is warranted. Accordingly, the case is REMANDED for the following actions: 1. The RO should secure for the record copies of the complete updated (since March 2013) clinical records of any VA treatment the Veteran has received for his major depression/severe anxiety. 2. The RO should then arrange for an appropriate examination of the Veteran to determine the current severity of his service-connected major depression/severe anxiety. The entire record (to include this remand) must be reviewed by the examiner in conjunction with the examination. All findings should be described in detail and should allow for rating under diagnostic code 9434. The examiner should also comment on the January 2011 statement of record, including explanation of his agreement or disagreement with the findings indicated in the statement. 3. The RO should then review the record and readjudicate the remaining claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs