Citation Nr: 1414305 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 12-03 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an effective date prior to May 4, 2010 for the award of service connection for depression. 2. Entitlement to an initial rating in excess of 50 percent for depression. 3. Entitlement to an effective date prior to May 4, 2010 for the award of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to October 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2010 and December 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Specifically, in the September 2010 rating decision, the RO granted service connection for depression and assigned an initial 30 percent disability rating, effective May 4, 2010. The Veteran subsequently perfected his appeal as to the effective date assigned. In the December 2011 rating decision, the RO, in part, granted a TDIU effective May 4, 2010 and awarded a 50 percent rating for depression, effective May 4, 2010. As will be discussed further herein, the Veteran has a pending notice of disagreement as to the issues regarding the propriety of the initial rating assigned for depression and the effective date assigned for the award of a TDIU. The Board notes that, in addition to the paper claims file, there are two separate paperless claims files associated with the Veteran's claims, a Virtual VA file and a Veterans Benefits Management System (VBMS) file. A review of the documents in Virtual VA reveals that these documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. Further, the Veteran's VBMS file does not contain any documents at this time. The issues of entitlement to an initial rating in excess of 50 percent for depression and entitlement to an effective date prior to May 4, 2010 for the award of a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the VA RO. FINDINGS OF FACT 1. On March 2, 2010, VA received the Veteran's claim for an increased rating for his service-connected ulcerative colitis. He made no mention of a depressive disorder secondary to his ulcerative colitis at that time. 2. The Veteran's original claim of entitlement to service connection for depression secondary to service-connected ulcerative colitis was received by VA on May 4, 2010. 3. In a rating decision issued in September 2010, the RO granted service connection for depression, effective May 4, 2010, the date of receipt of the Veteran's original claim for service connection. CONCLUSION OF LAW The criteria for an effective date prior to May 4, 2010, for the award of service connection for depression have not been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2013); 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 Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Board observes that the Veteran has appealed the propriety of the initially assigned effective date from the original grant of service connection for depression. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for depression was granted and an initial rating and effective date were assigned in the September 2010 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned effective date, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Board notes that relevant evidence was reviewed by the RO in connection with the adjudication of the Veteran's underlying service connection claim. However, pertinent to his effective date claim, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of his original claim for service connection, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already contained in the claims file. There is no outstanding information or evidence that would help substantiate the Veteran's claim. VA's General Counsel has held that in cases where a 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, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004). Therefore, in the context of the instant claim, the Board finds that VA has satisfied its duty to assist. II. Analysis Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. An application for VA compensation must generally be a specific claim in the form prescribed by the VA Secretary (i.e., VA Form 21-526). 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). However, any communication or action received from the claimant or certain specified individuals on the claimant's behalf which indicates an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a). Such informal claim must identify the benefit sought. Id. In the instant case, the VA received the Veteran's original claim of entitlement to service connection for depression secondary to service-connected ulcerative colitis on May 4, 2010. There is no formal or informal claim for service connection for such disability prior to that date. In this regard, a review of the claims file shows that the Veteran was first referred for a mental health evaluation in January 2010. At that time, the Veteran reported that be began feeling depressed a few months earlier due to his inability to regain employment since losing his job in the summer of 2009. The Veteran underwent a Beck Depression Inventory and received a score of 20, which was indicative of moderate depression. Even assuming that the Veteran was initially diagnosed with depression in January 2010, this is insufficient to establish that he is entitled to an earlier effective date under VA's governing laws and regulations. In this regard, the effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). In this regard, the Veteran's attorney has alleged that he is entitled to an earlier effective date as VA received his claim for an increased rating for his service-connected ulcerative colitis on March 2, 2010. See, e.g., February 2011 notice of disagreement; February 2012 substantive appeal. However, the Veteran made no mention of a depressive disorder secondary to his ulcerative colitis at that time. The March 2, 2010 statement is as follows: I want to file for an increase in the compensation I am receiving for Ulcerative Colitis. I am rated at 30% at this time, however my condition has become worse which has resulted in my taking more medications. Internal bleeding has worsened and I was prescribed Prednisone by my primary doctor at the VA hospital in Leavenworth. I have also developed Dysplasia and that was diagnosed at VA Leavenworth as well. Pursuant to 38 C.F.R. § 3.155, 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 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 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. In this case, there is no evidence that it was the intent of the Veteran to apply for service connection for depression under the laws administered by VA at the time VA received his claim for an increased rating for ulcerative colitis on March 2, 2010. Rather, the first date showing an intent to file a claim for service connection for depression is May 4, 2010, at which time VA received the Veteran's original claim of entitlement to service connection for depression secondary to service-connected ulcerative colitis. In this regard, as noted previously, the Veteran's March 2010 communication does not reference a psychiatric disorder or allege that such resulted from his service-connected ulcerative colitis. Therefore, the Veteran's March 2, 2010 claim for an increased rating for service-connected ulcerative colitis, without any indication of the Veteran's intent to seek service connection for a psychiatric disorder secondary to ulcerative colitis, cannot be construed as an informal claim under 38 C.F.R. § 3.155. The Board notes the February 2012 argument from the Veteran's attorney regarding the applicability of 38 C.F.R. § 3.156(b). 38 C.F.R. § 3.156(b) provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, this regulation does not pertain to the issue at hand. In this case, while 'new and material evidence' sufficient to warrant an increased rating for depression was received within the appeal period, such did not address the Veteran's claim for an earlier effective date for the award of service connection for such disability. Thus 38 C.F.R. § 3.156(b) is inapplicable and the Veteran's attorney's argument in this regard is without merit. Therefore, based on the above-stated facts and regulations, the Board finds that the legally correct date for the award of service connection for depression is May 4, 2010, the date VA received the Veteran's original claim of entitlement to service connection for such disability. As such, the Veteran is not entitled to an earlier effective date and his claim must be denied. ORDER An effective date prior to May 4, 2010, for the award of service connection for depression is denied. REMAND In the February 2011 notice of disagreement entered in response to the September 2010 rating decision, the Veteran's attorney noted disagreement with the initial 30 percent rating assigned for the depression. Specifically, the attorney argued that the Veteran's depression warranted a 100 percent disability rating. Also, after the issuance of the December 2011 rating decision that granted a TDIU effective May 4, 2010 and increased the Veteran's disability rating for depression to 50 percent, also effective May 4, 2010, the Veteran's attorney submitted correspondence in February 2012 in he argued that the benefit sought was "[a] total rating from March 10, 2010, for [the Veteran's] service[-]connected disabilities" and reiterated his earlier argument that the Veteran's depression warranted a 100 percent disability rating. The Board finds that the aforementioned contentions represent timely notices of disagreement with respect to the initial disability rating assigned for the Veteran's depression and the effective date assigned for his award of a TDIU. 38 C.F.R. § 20.201. As such, upon remand, the agency of original jurisdiction (AOJ) should issue a statement of the case addressing these issues. Manlincon v. West, 12 Vet. App. 238 (1999). However, these issues will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Provide the Veteran and his attorney with a statement of the case on the issues of entitlement to an initial rating in excess of 50 percent for depression and entitlement to an effective date prior to May 4, 2010 for the award of a TDIU. Please advise the Veteran and his attorney of the time period in which to perfect the appeal. If an appeal of these issues is perfected in a timely fashion, then return the case to the Board for its review, as appropriate. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2013). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs