Citation Nr: 1759926 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 07-27 798 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an effective date earlier than January 17, 2006, for the grant of service connection for depressive disorder and award of the 30 percent rating. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from December 1953 to December 1955. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The claim was remanded by the Board in March 2013 in order for the RO to issue a statement of the case (SOC). The appeal followed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). FINDING OF FACT The Veteran's original claim to establish service connection for a psychiatric disability was received by the RO on January 17, 2006. CONCLUSION OF LAW The criteria for an effective date prior to January 17, 2006, for the grant of service connection for depressive disorder have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155 (2014), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran filed a claim to establish service connection for nervousness and anxiety secondary to his service-connected bilateral hearing loss that was received on January 17, 2006. See VA Form 21-4138. The claim was initially denied in a May 2007 rating decision that the Veteran appealed. The Board first remanded the claim in April 2010 but subsequently granted it in a June 2012 decision. The RO implemented the Board's grant in the June 2012 rating decision that is the subject of the current appeal. This rating decision established service connection for depressive disorder and assigned a 30 percent disability rating effective January 17, 2006, the date noted by the RO that the claim was received. Generally, the effective date of an award of service connection, to include on a secondary basis, is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2017). Prior to March 24, 2015, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2014). An informal claim was considered to be any communication or action indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). An informal claim needed to be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it had to identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Upon review of the record, the Board finds the RO assigned the earliest possible effective date for its grant of service connection for depressive disorder and award of 30 percent since there is no indication from review of the claims file that a claim seeking service connection for a psychiatric disability was filed prior to receipt of the January 17, 2006 VA Form 21-4138. That form stated in pertinent part, "Related to my service connected bilateral hearing loss, I will like to claim the several items secondary to this condition the following; ... 3. Nervous for my medical condition I get anxi[o]us." The representative's cover letter to the January 2006 claim listed "Original SC claim" as the issue. The Veteran's arguments center around when a psychiatric disorder arose as proven by symptoms that would have supported a rating under the rating schedule. However, it is the date a claim is filed that controls in service connection cases, not the date the condition was first shown to a compensable level. VA regulation specifically provides that VA and private medical records may be accepted as informal claims only after a condition has been service-connected. 38 C.F.R. § 3.157(b) (2017). Thus, the medical evidence dating prior to January 17, 2006 does not constitute a claim for secondary service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed.Cir.2006) (stating that § 3.157(b)(1) "makes clear that a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability."); Crawford v. Brown, 5 Vet. App. 33, 35-36 (1993). The essence of the Veteran's claim that he is entitled to an effective date earlier than January 17, 2006 for the grant of service connection for depressive disorder is based on his assertion that evidence dated prior to this date showed that a psychiatric condition existed and he met the criteria for a rating under VA's rating schedule. The document deemed to be a notice of disagreement in the prior Board decision states: I invite VA to reconsider the "Effective date" or "Payment start date" on February 1, 2006 in regard with the Depressive disorder claimed as a nervous condition because there is evidence previous to the above date. Although the evidence of 1981 is presumed destroyed, it showed a level of disability. But it is the evidence that stem from the Hearing held on Jan. 15, 1992, the evidence shows enough level of disability to support the VA rating schedule, undoubtedly. Therefore, the effective date should be reconsider. The Board acknowledges the assertion raised in the April 2017 post-remand brief that the Veteran initiated an informal claim for benefits in 1992 with a law judge. Review of the claims file, to include the statements submitted by the Veteran in support of this claim, indicates, however, that this claim for benefits was made with the Social Security Administration (SSA), not VA. An application for VA service-connected compensation benefits must be in writing and must be received in the Department of Veterans Affairs. 38 C.F.R. § 3.1(p), (r) (2014). The only exceptions as to the location where a VA claim can be filed are not applicable to this claim. In this regard, a VA claim can be submitted to the State Department if it is being filed in a foreign country. 38 C.F.R. § 3.108. Puerto Rico is considered to be a U.S. state for VA purposes. 38 C.F.R. § 3.1(i). Claims for death benefits filed with SSA can constitute a claim for VA death benefits, but there is no such regulation permitting a claim filed with SSA to be a claim for compensation benefits for a living veteran. 38 C.F.R. §§ 3.153, 3.201. Finally, a claim for VA benefits can be filed with the Department of Defense when the claim is filed at or prior to separation. 38 C.F.R. § 3.1(r) claim for service connection filed by a Veteran must be filed Claims for VA benefits for service connection must be filed with VA. As none of these exceptions applies to the Veteran's SSA claim, the fact that he was found disabled by SSA in a July 1992 decision cannot serve as the basis to award an earlier effective date for his VA compensation award. The Board also acknowledges the Veteran's assertion that he reported he had abandoned his job because of "stress" related to his service-connected bilateral hearing loss in a January 31, 2004 letter addressed to the Board. However, this letter was submitted to the Board in conjunction with this appeal of his claim to reopen a claim for service connection for bilateral hearing loss. The Veteran stated that "The speech discrimination produced me uncomfortable-ness and stress, undoubtedly. I felt cohibit because sometimes I didn't know what the others members were talking about, although I apparently heard what they spoke. Therefore I kept silent, which is very uncomfortable for a Professor, undoubtedly; especially for a Professor who has written several books." The essence of his letter, however, was to establish that he should be service-connected for bilateral hearing loss and that the severity of his hearing loss. As noted above, when VA recognized informal claims prior to March 24, 2015, such claims were still required to indicate an intent to apply for one or more benefits under VA law. There is no indication from review of this letter that the Veteran intended to file for service connection for a psychiatric disability. As such, this letter cannot be considered an informal claim for benefits for a psychiatric disability. As discussed, the Veteran in essence contends that the effective date for the grant of service connection for depressive disorder should be based on evidence showing that he had a psychiatric disability that met the criteria for a rating under VA's rating schedule, to include letters from private psychiatrists dated prior to January 17, 2006, as well as on evidence that he was unable to work in part because of his psychiatric disability. However, the law governing effective dates is clear: the effective date is the date of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2) (emphasis added). Although it has been determined that the Veteran's depressive disorder is related to his service-connected bilateral hearing loss, it does not follow that just because service connection is warranted, the effective date of a grant of service connection should be during the time frame in which the condition and/or symptoms of the condition developed, since doing so would render meaningless many of the provisions of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Here, the Veteran's original claim for benefits for a psychiatric disorder was received on January 17, 2006, and this is the appropriate effective date for the award of service connection and 30 percent rating for a psychiatric disability. For the foregoing reasons, the claim for entitlement to an effective date earlier than January 17, 2006, for the grant of service connection for depressive disorder and a 30 percent rating is denied. As a final matter, the Board acknowledges the assertion raised in the April 2017 post-remand brief that he has inferred a claim for entitlement to a total disability rating for compensation based on individual unemployability (TDIU). However, the Board notes that entitlement to a TDIU was granted effective July 18, 2014 in an April 2015 rating decision. Although the Veteran initially indicated that he disagreed with the effective date assigned for the grant of this benefit, see May 2015 notice of disagreement, the Decision Review Officer indicated that following the informal conference, the Veteran's notice of disagreement dated May 1, 2015, which included an appeal as to the effective date of TDIU as well as the evaluation assigned to his psychiatric disability, was cancelled. See November 2015 Deferred Rating Decision). Accordingly, consideration of those claims by the Board is not warranted. ORDER An effective date prior to January 17, 2006 for the grant of service connection and award of a 30 percent rating for depressive disorder is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs