Citation Nr: 18144343 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 10-22 395A DATE: October 24, 2018 ORDER Entitlement to an effective date prior to September 22, 2015, for the grant of service connection of major depressive disorder is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for left knee instability is remanded. Entitlement to a rating in excess of 30 percent for left knee strain with degenerative arthritis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The Veteran’s initial claim of service connection for an acquired psychiatric disorder was denied in an August 2010 rating decision; he did not appeal that denial and it became final. 2. The Veteran did not file a new claim for an acquired psychiatric disorder (later granted as major depressive disorder) until September 22, 2015. CONCLUSION OF LAW The criteria for an effective date prior to September 22, 2015, for the grant of service connection of major depressive disorder have not been met. See 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 20.302. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1974 to March 1976, and from February 1979 to December 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2009 and January 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. As a matter of background, the increased rating claims and claim for TDIU previously came before the Board in February 2014 and again in February 2017, at which time they were remanded for further development. The Veteran testified before the undersigned Veterans Law Judge regarding those issues in May 2013; a transcript of that hearing is of record. In March 2017, the Veteran perfected his claim for an earlier effective date for the grant of service connection of major depressive disorder to the Board, and it was certified to the Board in May 2017. As the Veteran did not request a hearing before a Veterans Law Judge with regard to that issue, it has been merged with the other issues on appeal and is now included as part of the present appeal. 1. Entitlement to an effective date prior to September 22, 2015, for the grant of service connection of major depressive disorder In January 2016, the RO issued a rating decision which granted service connection for major depressive disorder and assigned a 70 percent rating for that disability, effective September 22, 2015. The Veteran has appealed the effective date of that grant, arguing that an earlier effective date should be assigned. After careful review of the evidence of record, the Board finds that the claim should be denied. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. §5110; 38 C.F.R. §3.400. The effective date of an original award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the latter of the date of receipt of the claim, or the date the entitlement arose. 38 U.S.C. §5110; 38 C.F.R. §3.400(b)(2)(i). The Veteran filed a claim of service connection for an acquired psychiatric disorder (claimed as posttraumatic stress disorder (PTSD)) in April 2010. That claim was denied in an August 2010 rating decision. The Veteran did not appeal that decision, and it subsequently became final one year later. 38 C.F.R. § 20.302(a). The Veteran filed a new claim for an acquired psychiatric disability, this time claimed as depression, on September 22, 2015. The Board has carefully reviewed the evidence of record between the August 2010 rating decision and the September 22, 2015, but has found nothing that could be construed as a claim of service connection for any type of psychiatric disability or a notice of disagreement with the prior denial. Although the Veteran had, in fact, filed an earlier claim, it was denied by the RO; unfortunately, the Veteran did not appeal that denial and it became final. As noted above, the effective date of an award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. Absent any evidence that the Veteran attempted to appeal the prior denial, or file a claim prior to September 22, 2015, the Board cannot assign an effective date for the grant of service connection for major depressive disorder earlier than September 22, 2015. In sum, the earliest possible effective date for a grant of service connection of major depressive disorder is September 22, 2015, the date of the Veteran’s claim to reopen his previously denied claim. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for left knee instability is remanded. 2. Entitlement to a rating in excess of 30 percent for left knee strain with degenerative arthritis is remanded. In February 2017, the Board remanded the increased rating claims pertaining to the Veteran’s left knee disabilities for a new VA examination, per the holding in Correia v. McDonald, 28 Vet. App. 158 (2016). The Board instructions following that examination included an order that the Veteran and his representative be furnished a supplemental statement of the case before the record returned to the Board for further appellate review. The Veteran was afforded a VA examination of his knee in March 2017. The record reflects that on August 2, 2017, VA received from the Veteran’s representative a Due Process Waiver, indicating that a supplemental statement of the case had been received and the Veteran wished for the claim to be forwarded to the Board for immediate review. Unfortunately, there is no copy of any supplemental statement of the case in the record, and the Board cannot review it if it was, in fact, issued. Further complicating the matter, on August 15, 2017, thirteen days after the Veteran’s representative submitted the Due Process Waiver, VA sought and obtained a new VA examination of the Veteran’s knees. Although this examination appears to have been associated with a claim of service connection for a right knee disability, the left knee was also examined and additional range of motion and stability findings were reported. There is no indication in the record that this evidence, which was sought and obtained by VA and is relevant to the increased rating claims on appeal, was ever considered nor the claims readjudicated. No supplemental statement of the case is of record addressing this evidence. Essentially, the Board does not have any proof beyond the Due Process Waiver that a supplemental statement of the case was ever issued to the Veteran. Further, to the extent that VA obtained relevant evidence after the issuance of the most recent supplemental statement of the case (if it was, in fact, issued), that evidence must be considered by the RO and a new supplemental statement of the case issued which addresses it. 38 U.S.C. §7105; 38 C.F.R. §19.31; see also Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the claimant a right to strict compliance with the Board’s remand orders) 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Finally, because a decision on the remanded issues of entitlement to an increased disability rating for left knee strain and left knee instability could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. A remand of the claim of entitlement to TDIU is required. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any additional evidence in support of his claims. 2. The RO should readjudicate the claims remaining on appeal in light of all evidence pertaining the Veteran’s left knee disabilities and TDIU claim. A supplemental statement of the case should be issued to the Veteran and his representative and afford adequate time to respond before returning the matters to the Board for additional appellate review. D.C. SPICKLER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel