Citation Nr: 18141448 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-42 594 DATE: October 10, 2018 ORDER Entitlement to an effective date earlier than August 18, 2012, for the grant of service connection for unspecified depressive disorder is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for unspecified depressive disorder is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. Entitlement to an initial compensable rating for left ear hearing loss is remanded. Entitlement to an effective date earlier than December 12, 2016, for the grant of service connection for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. Entitlement to a compensable rating for traumatic brain injury (TBI) is remanded. Entitlement to an effective date earlier than August 18, 2012, for the grant of service connection for TBI is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT The Veteran was granted service connection for unspecified depressive disorder, effective August 18, 2012, the day after his discharge from service. CONCLUSION OF LAW The criteria for assignment of an effective date prior to August 18, 2012, for the award of service connection for unspecified depressive disorder are not met. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2000 to August 2012. This matter is on appeal from a February 2015 (depressive disorder) and July 2017 (hearing loss, TBI, sleep apnea) rating decision. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disability prevents him from working. In this case, the record raises TDIU, as the evidence suggests the Veteran is unable to work as a result of his service-connected unspecified depressive disorder. See, e.g., September 2016 medical opinion from Dr. H. H-G. Accordingly, the Board has characterized the issues on appeal so as to include a claim for entitlement to TDIU. Entitlement to an effective date earlier than August 18, 2012, for the grant of service connection for unspecified depressive disorder The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on an original claim or a reopened claim will be the “[d]ate of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400. The Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case. Here, the Veteran was granted service connection for unspecified depressive disorder in a February 2015 rating decision, effective August 18, 2012. He seeks an earlier effective date for service connection. Based upon a review of the evidence, the Board finds that the currently assigned effective date of August 18, 2012, is the earliest effective date assignable for the award of service connection for unspecified depressive disorder. The Veteran separated from active duty service on August 17, 2012. His claim for service connection for depression was received within one year of separation. The Veteran was afforded a VA examination in February 2014, which identified a diagnosis of unspecified depressive disorder. Therefore, in accordance with 38 C.F.R. § 3.400, the RO has assigned an effective date of service connection for unspecified depressive disorder of August 18, 2012, the day after the Veteran’s discharge from active duty service. No earlier effective date is assignable under the law. 38 C.F.R. § 3.400 (b)(2) (if a claim was received within one year after separation from service, the date of entitlement shall be the day following separation). Thus, the Board finds that the effective date for the grant of service connection for unspecified depressive disorder may be no earlier than the currently assigned date of August 18, 2012. Accordingly, the benefit sought on appeal is denied. REASONS FOR REMAND Following the most recent November 2015 Statement of the Case, additional evidence has been added to the claims file. In particular, in July 2017, the Veteran was afforded a VA mental disorders examination. Additionally, the RO obtained updated VA treatment records. The information contained in the VA examination report and treatment records is relevant to the Veteran’s claims for an initial increased rating for the service-connected unspecified depressive disorder and TDIU. As such, the claims must be remanded for initial AOJ consideration of this evidence. Moreover, the evidence shows that the Veteran is in receipt of Social Security Administration (SSA) disability benefits. See, e.g., psychological evaluation by Dr. H. H-G (noting that the Veteran began receiving SSDI in 2014 for physical and mental disabilities). As these records may be relevant to his claims, the AOJ should obtain all records from the SSA pertaining to the Veteran’s claim for disability benefits. As the Board has determined that a claim for a TDIU is part of the increased rating claim on appeal, and the Veteran has not yet been sent a notification letter in compliance with 38 U.S.C. § 5103(a) (2012) and 38 C.F.R. § 3.159(b) (2017), the claim must be remanded for appropriate notice and development. While on remand, updated treatment records should be obtained. Regarding the claims of entitlement to an initial compensable rating for left ear hearing loss; entitlement to an effective date earlier than December 12, 2016, for the grant of service connection for left ear hearing loss; entitlement to service connection for right ear hearing loss; entitlement to a compensable rating for TBI; entitlement to an effective date earlier than August 18, 2012, for the grant of service connection for TBI; and entitlement to service connection for obstructive sleep apnea, the Veteran submitted a timely notice of disagreement with the July 2017 rating decision, but a statement of the case has not yet been issued. See November 2017 notice of disagreement. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Ensure that all notification and development action required is fully complied with and satisfied with respect to the issue of entitlement to TDIU pursuant to 38 C.F.R. § 4.16. 2. Contact SSA and obtain any records pertaining to the Veteran’s claim for disability benefits. Add all such records to the claims file, and appropriately document if such records are unavailable. 3. Obtain the Veteran’s VA treatment records for the period from July 2017 to the present. 4. Send a statement of the case that addresses the issues of entitlement to an initial compensable rating for left ear hearing loss; entitlement to an effective date earlier than December 12, 2016, for the grant of service connection for left ear hearing loss; entitlement to service connection for right ear hearing loss; entitlement to a compensable rating for TBI; entitlement to an effective date earlier than August 18, 2012, for the grant of service connection for TBI; and entitlement to service connection for obstructive sleep apnea. If the Veteran perfects an appeal, the issues should be returned to the Board. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs