Citation Nr: 18147564 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-38 573 DATE: November 5, 2018 ORDER Entitlement to an effective date of September 2, 2009, for the grant of service connection for major depressive disorder, diagnosed as a mood disorder, is granted REMANDED Entitlement to an increase rating in excess of 70 percent since March 5, 2012 for major depressive disorder, diagnosed as a mood disorder, is remanded. Entitlement to an effective date prior to March 5, 2012, for the grant of entitlement to a total disability rating based on individual employability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran submitted an application to reopen a claim for service connection for a psychiatric disability, to include as secondary to his back disability in an application received by the VA on September 2, 2009. CONCLUSION OF LAW 1. The criteria to an effective date of September 2, 2009, for the grant of a major depressive disorder, diagnosed as a mood disorder, have been satisfied. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service in the US Army from May 1999 to November 2000. Effective Date The Veteran has asserted entitlement to an earlier effective date for the grant of service connection for his service connected depressive disorder. The Veteran argues, that his effective date should be September 2, 2009. He states that he first filed a claim for service connection for depression as secondary to his back disability in September 2009 and has continuously pursued his claim, including a timely appeal, since the receipt of his initial application. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. After careful consideration of the evidence of record, the Board finds that an earlier effective date for his service-connected depressive disorder is warranted. Although previously denied, the Veteran again sought service connection on September 2, 2009. The Veteran asserted that he was treated in service for depression, and that his depression continued since service because of his back disability. In November 2015, the Board granted the Veteran’s claim for service connection for a psychiatric disorder, to include depression, as secondary to his back disability. The RO determined that entitlement to service connection was established on the date of diagnosis by the Veteran’s private physician, March 5, 2012, received by the VA in April 2015. However, the Board finds that entitlement arose earlier as the Veteran consistently stated that he was treated for depression in service and his symptoms of a depressive disability have been continuing since service. After reviewing the evidence of record, the Board finds that the claim effectuated in a January 2016 rating decision was filed by the Veteran on September 2, 2009 and had been continuously on appeal since that time and that entitlement rose with the date of claim. The Veteran has continuously pursued a claim for a nervous disorder, or a depressive disorder since 2001. In 2009, the Veteran sought to reopen his claim for a psychiatric disorder in September 2009. The Board finds that the evidence of record indicates that the Veteran has been suffering from some type psychiatric disorder prior March 5, 2012, and such an effective date of September 2, 2009, for the grant of service connection for a psychiatric disorder, to include depression as secondary to a service-connected back disability is warranted. REASONS FOR REMAND In this case the Board granted an earlier effective date for service connection for depression. Since the rating of the earlier period falls under the jurisdiction of the AOJ, the claim for an earlier effective date for TDIU as well as for a rating in excess of 70 percent since March 5, 2012. On remand, AOJ should rate the earlier period and adjudicate the two intertwined claims. The matter is REMANDED for the following action: 1. The AOJ should rate the earlier effective period for the grant of service connection for depression. 2. The AOJ should then re-adjudicate the claim for an effective date prior to March 5, 2012 for the grant of a TDIU. 3. The AOJ should also re-adjudicate the claim for a rating in excess of 70 percent since March 5, 2012 for depression. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson