Citation Nr: 18142013 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 16-24 512 DATE: October 12, 2018 ORDER Entitlement to an effective date earlier than October 12, 2012 for the grant of service connection for depression is denied. REMANDED Entitlement to an effective date earlier than October 12, 2012 for the grant of a total disability based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran did not file a formal or informal claim for service connection for depression prior to October 12, 2012. CONCLUSION OF LAW The criteria are not met for an effective date earlier than October 12, 2012, for the grant of service connection for depression. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(c), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to September 1971 and from October 1979 to March 1981. The Veteran died in April 2015. The Appellant is his widow. This matter comes before the Board of Veterans' Appeals (Board/BVA) from an appeal of rating decisions of October 2013 (depression grant) and December 2014 (TDIU grant) from a Regional Office (RO) of the Department of Veterans Affairs (VA). Issue: Entitlement to an effective date earlier than October 12, 2012 for the grant of service connection for depression Earlier Effective Date The provisions for the determination of an effective date of an award of compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Merits The Appellant, through counsel, argues VA should grant an effective date of October 22, 2004 for the grant of service connection for depression. Counsel argues for this date based upon the relationship between the Veteran's depression and his service-connected headaches, which have this effective date, and the presence of treatment records for depression dating from December 2003 in the claims file. Entitlement to benefits for a disability or disease arises with the manifestation of the condition and the filing of a claim for benefits for the condition. See DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). The U. S. Court of Appeals for the Federal Circuit has held that the mere mention of a condition in a medical record, alone, cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006). The undersigned recognizes that VA permitted informal claims under 38 C.F.R. § 3.155 prior to March 2015. However, the prior version of the regulation did not allow medical records alone to be an informal claim for service connection. Thus, Counsel's constructive notice argument, as seen in his November 2013 filing, fails. Accordingly, the undersigned finds VA properly assigned October 12, 2012 as the effective date for the grant of service connection for depression. REASONS FOR REMAND Issue: Entitlement to an effective date earlier than October 12, 2012 for the grant of a total disability based upon individual unemployability (TDIU) The Veteran had a cerebrovascular accident on September 26, 2003. The Social Security Administration awarded disability from this date for a primary diagnosis of "late effects of cerebrovascular disease" and a secondary diagnosis of "essential hypertension." The Veteran claimed service connection for headaches on October 22, 2004. The Board granted service connection in April 2007. VA implemented the grant that same month, rating the headaches as noncompensable. The Veteran disagreed with the rating, and in October 2008 the Board awarded a 30 percent rating. On April 28, 2009, the Veteran claimed an increased rating for headaches. In September 2012, the Board awarded a 50 percent rating, found the Veteran had raised the issue of a TDIU, and remanded the TDIU. VA implemented the grant in October 2012, assigning an effective date of April 28, 2009. VA, in December 2014, granted the TDIU, effective October 12, 2012. It awarded the TDIU based on the Veteran’s headaches and depression. October 22, 2012 is the date the Veteran first met the schedular requirement of 38 C.F.R. § 4.16(a). The Appellant, through counsel, argues that VA should grant an effective date of October 22, 2004 for the grant of the TDIU. However, given that the Board's decision in October 2008 was final when the Board issued it and that the Board denied an earlier effective date for the grant of service connection for depression above, the earliest possible date for the TDIU is April 28, 2009, the date of the increased rating claim for headaches. Moreover, this date would only apply if VA determines that the Veteran's headaches alone made him unemployable. Because VA rated the Veteran as 50 percent disabled prior to October 12, 2012, 38 C.F.R. § 4.16(a) does not apply. The Board must therefore analyze the issue of entitlement to an earlier effective date for the grant of TDIU from April 28, 2009 to October 11, 2012 under 38 C.F.R. § 4.16(b). Under 38 C.F.R. § 4.16(b), remand is warranted to the Director, Compensation Service to determine the merit of this argument in the first instance. The matter is REMANDED for the following action: Submit the issue of entitlement to an earlier effective date for the grant of TDIU from April 28, 2009 to October 11, 2012, on an extraschedular basis only, to the Director, Compensation Service. An extraschedular evaluation under 38 C.F.R. § 4.16(b) merely requires a determination that a Veteran is rendered unable to secure or follow a substantially gainful occupation because of his or her service-connected disabilities. See VAOPGCPREC 6-96. Also, the Veteran’s employment history, educational and vocational attainment, and all other factors having a bearing on his employability (or lack thereof) should be considered under 38 C.F.R. § 4.16(b). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel