Citation Nr: 1643674 Decision Date: 11/17/16 Archive Date: 12/01/16 DOCKET NO. 13-03 371A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for depression not otherwise specified. 2. Entitlement to an effective date prior to February 17, 2005 for depression not otherwise specified. ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to January 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Appeals Management Center as to the initial disability rating, and a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico as to the earlier effective date issue. The most recent VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, is dated in September 2013 and names the Disabled American Veterans (DAV) as the Veteran's representative. The Veteran revoked this authorization in a March 2014 statement. In this statement, the Veteran asserted that his new representative is Jonathan Bruce, attorney, but there is no VA Form 21-22a, Appointment of Individual as Claimant's Representative, associated with the claims file that appoints Jonathan Bruce as the Veteran's representative. In August 2016, VA sent the Veteran a letter explaining the situation and attempting to clarify representation. This letter explained that if the Veteran did not respond within thirty days, VA would assume that the Veteran wishes to represent himself. As the Veteran has not responded to the letter, the Board will proceed with the understanding that the Veteran is representing himself. The issue of entitlement to an initial rating in excess of 30 percent for depression not otherwise specified is addressed in the REMAND portion of the decision below and is REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. In a December 2010 rating decision, the Veteran was granted service connection for depression not otherwise specified, effective February 17, 2005. 2. The Veteran did not submit a timely notice of disagreement with the December 2010 rating decision as to the assignment of the effective date for the grant of service connection for depression not otherwise specified within one year of notification. 3. In a statement received by VA on January 24, 2012, the Veteran requested that the effective date for service connection for depression not otherwise specified be changed to November 8, 1977. 4. Although this January 2012 statement generally asserted he did not receive the correct retroactive compensation because VA made a mistake, this statement did not rise to the level of a claim of clear and unmistakable error. CONCLUSION OF LAW The criteria for an effective date earlier than February 17, 2005, for the grant of service connection for depression not otherwise specified have not been met. 38 U.S.C.A. §§ 5109A, 5110(a), 7105(c) (West 2014); 38 C.F.R. §§ 3.105(a), 3.151(a), 3.400, 20.200, 20.201 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the Veteran's claim for entitlement to an effective date prior to February 17, 2005 for the award of service connection for depression not otherwise specified, the claim is dismissed as a matter of law. Accordingly, the VCAA is not applicable to that claim. See Manning v. Principi, 16 Vet. App. 534, 542 (2002) (holding that the VCAA has no effect on appeal limited to matter of law); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (noting that the VCAA is not applicable where law is dispositive). Nonetheless, the Board notes that a September 2012 VA letter satisfied the duty to notify provisions and advised the Veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson at 1333-34 (Fed. Cir. 2006). With respect to VA's duty to assist, VA is only required to make reasonable efforts to obtain relevant records that the Veteran has adequately identified to VA. 38 U.S.C.A. § 5103A(b)(1). VA treatment records, Social Security Administration (SSA) records, and service treatment records have been obtained. Although there are outstanding private psychiatric records, there is no indication that they contain information relevant specifically to the issue of entitlement to an earlier effective date for the Veteran's depression not otherwise specified, especially as the existence of a disability prior to the date of service connection does not change the outcome of the claim, as will be discussed further below. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall 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(b)(2)(i). A claim is defined in VA regulations as 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). An informal claim is defined as any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). Service connection for a nervous condition, specifically schizophrenia, was granted in May 1974. The RO found there was clear and unmistakable error in this decision and proposed severance of service connection in August 1977. This severance was made final in a November 1977 rating decision. The Veteran appealed the severance, and the Board ultimately denied restoration of service connection for a psychiatric disorder in a January 1979 decision. This Board decision became final. 38 U.S.C. §4004(b) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1978). The Veteran claimed service connection for a nervous condition in a statement received on February 17, 2005. After a December 2009 Board decision reopened and remanded the claim, a December 2010 rating decision granted service connection for depression not otherwise specified (also claimed and remanded as acquired psychiatric disorder, to include schizophrenia, undifferentiated type) effective February 17, 2005. The Veteran submitted a timely notice of disagreement as to the disability rating assigned, but did not submit a timely notice of disagreement as to the effective date assigned. Therefore, the December 2010 rating decision became final as to effective date. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1102 (2000). After the December 2010 rating decision became final as to effective date, the Veteran submitted a freestanding claim for an earlier effective date, which was received on January 24, 2012. Although the RO proceeded to adjudicate the earlier effective date claim on the merits, a freestanding claim for an earlier effective date is not a proper claim subject to adjudication. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Rather, it is appropriate to dismiss such a "claim" because it cannot be entertained. Id. A Veteran can only establish an earlier effective date following a final rating decision by demonstrating clear and unmistakable error (CUE) in that rating action. The Veteran has not established or alleged CUE in this case. The Board acknowledges that the Veteran's earlier effective date claim asserted that because VA made a mistake, the Veteran did not receive the correct retroactive compensation. However, this general assertion does not rise to the level of CUE. For a claim of CUE to be reasonably raised, the claimant must provide some degree of specificity as to what the error is, and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why the error would have manifestly changed the outcome at the time it was made. Bustos v. West, 179 F.3d 1378, 1380 (1999) (citing Russell, 3 Vet. App. at 313 (1992)); see also Fugo, 6 Vet. App. at 44 (1993). The Veteran has not provided any specificity as to what error he alleges, but rather generally asserted that VA made a mistake. Additionally, the Veteran has not asserted the date of the decision he wishes to contest, leaving the record unclear as to whether he takes issue with the December 2010 rating decision granting service connection for depression not otherwise specified or the January 1979 Board decision denying restoration of service connection for a psychiatric disorder. Therefore, the filing and pleading requirements for CUE have not been met, and the earlier effective date claim cannot be interpreted as reasonably raising a CUE claim as well. 38 C.F.R. §§ 3.105, 20.1404; Mindenhall v. Brown, 7 Vet. App. 271, 275 (1994) (failure to specify the date of the decision being collaterally attacked, where multiple decisions have been rendered, renders the pleading of CUE insufficient). As the Veteran's claim for earlier effective date is a freestanding claim that does not reasonably raise the issue of CUE, and was received after the December 2010 rating decision granting service connection for depression not otherwise specified became final as to effective date, the Board must dismiss the claim as a matter of law. Discussion of whether the Veteran had a psychiatric disability prior to February 17, 2005 is not necessary because it has no bearing on the legal outcome of this issue. ORDER The claim of entitlement to an effective date prior to February 17, 2005 for depression not otherwise specified is dismissed. REMAND As to entitlement to an initial rating in excess of 30 percent for depression not otherwise specified, a February 2010 VA treatment note contains a reference to the Veteran being followed by private psychiatrist Dr. V., who also prescribed the Veteran medication. The record does not contain records from Dr. V., and there is no indication that an attempt was made to obtain these records. As reference has been made to pertinent outstanding private medical records, VA is on notice of their existence and has a duty to assist the Veteran in an attempt to obtain them. Upon remand, an attempt should be made to obtain these records. Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). The claims folder should also be updated to include VA treatment records compiled since March 10, 2015. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records for the Veteran from the VA Caribbean Healthcare System and all associated outpatient clinics including the facility in San Juan, Puerto Rico, dated from March 10, 2015 to the present. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All attempts to obtain the records must be documented in the claims file. 2. After obtaining the appropriate authorization, attempt to obtain records of the Veteran's treatment by Dr. V., a private psychiatrist identified in a February 25, 2010 VA treatment note. The AOJ must make two attempts to obtain these records unless the first attempt demonstrates that further attempts would be futile. If no records are obtained, the AOJ must (1) inform the Veteran of the records that were not obtained (2) tell the Veteran what steps were taken to obtain them, and (3) tell the Veteran that the claim will be adjudicated without the records but that if he later submits them, the claim may be reconsidered. See 38 U.S.C.A. § 5103A(b)(2)(B) (West 2014). 3. After completing the above development, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. 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 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 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs