Citation Nr: 18152702 Decision Date: 11/27/18 Archive Date: 11/23/18 DOCKET NO. 18-39 653 DATE: November 27, 2018 ORDER An effective date earlier than July 5, 2005, for the grant of service connection for major depressive disorder and anxiety is denied. REMANDED Entitlement to an initial rating in excess of 70 percent for major depressive disorder and anxiety is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disability is remanded FINDING OF FACT 1. The January 1999 rating decision denied the Veteran’s claim seeking entitlement to service connection for a psychiatric disorder (originally claimed as PTSD, now more appropriately diagnosed as major depressive disorder and anxiety); VA did not receive a timely appeal that determination or new and material evidence prior to expiration of the appeal period; the January 1999 rating decision is final. 2. On July 5, 2005, VA received a request to reopen the claim of entitlement to service connection for a psychiatric disorder (diagnosed as major depressive disorder and anxiety). CONCLUSION OF LAW The criteria for an effective date earlier than July 5, 2005, for the grant of service connection for major depressive disorder and anxiety, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from June 1952 to December 1955 and from February 1956 to February 1964. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama. On several occasions during the appeal period, the Veteran’s private attorney raised the issue of entitlement to a TDIU in connection with the claim for a psychiatric disorder. As the issue of an increased rating is now before the Board, the issue of entitlement to a TDIU is also before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). The record includes November 2018 correspondence from the Veteran’s attorney. This did not include a motion for an extension of time to submit evidence. Therefore, the Board will proceed in addressing the matters. Entitlement to an effective date earlier than July 5, 2005, for the grant of service connection for major depressive disorder and anxiety. The Veteran contends that he is entitled to an effective date earlier than July 5, 2005 for the grant of service connection for major depressive disorder and anxiety. The Board concludes that the preponderance of the evidence is against an effective date earlier than July 5, 2005 for the grant of service connection for psychiatric disability because the award was based on a claim reopened after final disallowance. 38 U.S.C. §5110(a); 38 C.F.R. § 3.400(q). Where new and material evidence other than service department records has been submitted to reopen a prior claim for benefits (more than one year following a prior final denial of the claim), the effective date will be either the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q). If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244 (2002), aff’d 349 F.3d 1326 (Fed. Cir. 2003). In a January 1999 rating decision, the RO denied the Veteran’s claim seeking entitlement to service connection for posttraumatic stress disorder (PTSD). VA did not receive a timely appeal that determination or new and material evidence prior to expiration of the appeal period. Hence, the January 1999 rating decision is final. On July 5, 2005, VA received the Veteran’s petition to reopen the issue of entitlement to service connection for PTSD (also claimed as social phobia). In a November 2005 rating decision, the RO denied reopening the Veteran’s claim. The Veteran timely appealed. In a June 2010 decision, the Board reopened the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. In November 2011, the Board remanded the claim again for further development. In a September 2012 decision, the Board denied the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran then appealed the Board’s September 2012 decision to the United States Court of Appeals for Veterans Claims (Court). In May 2013, the parties (the Veteran and the VA Secretary) filed a joint motion which requested that the Board’s decision, as to that issue, be vacated and remanded. A May 2013 Court Order granted the motion. In a February 2015 decision, the Board again denied the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran appealed the Board’s February 2015 decision to the Court. In March 2016, the parties (the Veteran and the VA Secretary) filed a joint motion which requested that the Board’s decision, as to that issue, be vacated and remanded. A March 2016 Court Order granted the motion. In an August 2016 decision, the Board granted the Veteran’s claim of entitlement to service connection for a psychiatric disorder, more appropriately diagnosed as a major depressive disorder and an anxiety disorder. In an August 2016 rating decision, the RO implemented the Board’s grant of benefits. Specifically, the RO assigned a 70 percent disability rating to the Veteran’s service-connected major depressive disorder and anxiety, effective July 5, 2005. The Veteran appealed the initial disability rating and effective date assigned by the RO. In this case, because the award of benefits is based on the receipt of new and material evidence received after final disallowance (i.e. the January 1999 denial), the date of receipt of the new claim is the correct effective date. While the Board does not dispute that the Veteran had problems prior to this date and that his disability arose prior to this date, the applicable law requires that the assigned effective date is either the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q) (emphasis added). As such, notwithstanding the Veteran’s belief that he is entitled to an earlier effective date, the law does not permit the assignment of an earlier effective when the grant of benefits is based on a reopened claim after final disallowance. The Veteran has not identified nor has the Board’s review of the record disclosed new and material evidence, or claim for benefits, prior to July 5, 2005, and after the originating agency’s January 1999 final decision. See 38 C.F.R. §§ 3.1(p), 3.155(a). See also Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). As is, the evidence of record provides no basis for an award of service connection prior to July 5, 2005. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q). Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to an initial rating in excess of 70 percent for major depressive disorder and anxiety is remanded. The Veteran is currently in receipt of an initial 70 percent disability rating for his service-connected major depressive disorder and anxiety, effective from July 5, 2005. The Veteran claims that his service-connected major depressive disorder and anxiety warrants a higher initial evaluation. An October 2010 VA examination found no diagnosis for a mental disorder. Likewise, a December 2011 VA examination found no diagnosis for a mental disorder. A mental disorder was not clinically diagnosed in the record until the Veteran underwent a private psychology evaluation in May 2016. The corresponding evaluation report notes the following: “The Veteran presented as alert and oriented in all spheres and had normal thought content. He has a long history of problems with depression and anxiety, he reported mild symptoms of depression at the time of the evaluation. He denied suicidal ideation, but according to records, had a number of difficulties with suicidality in the 1960s. His affect was appropriate throughout the interview. He experiences a number of problems with anxiety, including social anxiety, difficulty sleeping, and intermittent experience of flashbacks/panic attacks. He denied problems with his appetite. He denied the experience of hallucinations. He did not present with delusional thoughts. His speech was considered normal in rate, rhythm, and tone. No problems were noted with attention or concentration. No problems were noted with immediate, recent, or remote memory. His general fund of information was considered adequate, and he was considered to be functioning in the average range of intelligence. Judgment and insight were considered appropriate within the scope of his current conditions.” The private psychologist found that the Veteran met the criteria for social anxiety disorder; moderate major depressive disorder with recurrent episodes, and alcohol use disorder in sustained remission. Based on the results of this evaluation, and taking into consideration the Veteran’s diagnoses and history of occupational impairment with an inability to obtain or maintain consistent formal employment at any point after his discharge from the military, the private psychologist opined that “it is more likely than not that his psychiatric disability has resulted in occupational and social impairment in most areas, including work, family relationship, judgment, thinking, and overall mood since at least 1967.” The private psychologist concluded that the Veteran’s symptoms have affected him occupationally and. socially for the majority of his adult life, including social relationships and family relationships (as evidenced by his chronic social isolation), employment difficulties (as evidenced by his inability to obtain a job for most of his life), and a number of past issues with judgment and thought content. While the private psychologist found that the Veteran’s psychiatric symptoms resulted in his inability to obtain/maintain substantially gainful employment, the psychologist did not indicate that the Veteran’s symptomatology resulted in total occupational and social impairment. The Veteran underwent a VA psychiatric examination in August 2018. The VA examiner found that the Veteran’s psychiatric symptoms manifested as depressed mood; anxiety; suspiciousness; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. The examiner found that the Veteran’s psychiatric symptoms and overall disability picture were productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The examiner did not find that the Veteran’s symptomatology resulted in total occupational and social impairment. The Veteran underwent another VA psychiatric examination in November 2018. Based on that evaluation, the VA examiner reported that the Veteran’s psychiatric symptoms manifested as depressed mood; anxiety; suspiciousness; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. The examiner found that the Veteran’s psychiatric symptoms and overall disability picture were productive of occupational and social impairment with reduced reliability and productivity. While the examiner did not find that the Veteran’s symptomatology was congruent with occupational and social impairment with deficiencies in most areas, the reported symptoms were identical to those found during the August 2018 examination. Moreover, the examiner did not find that the Veteran’s symptomatology resulted in total occupational and social impairment. Having carefully reviewed the evidence, the Board finds that the remand is necessary to an addendum to the November 2018 VA examination report clarifying the basis for the conclusion that the Veteran’s disability was productive of occupational and social impairment with reduced reliability and productivity although the reported symptoms were identical to those found during the August 2018 examination. Also, remand is necessary to ensure due process of law given that VA obtained additional relevant evidence since the most recent Supplemental Statement of the Case was issued to the Veteran in September 2018. Entitlement to TDIU is remanded. The issue of TDIU is inextricably intertwined with the claim for increase and is deferred. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the November 2018 VA mental disorders examiner clarifying the basis for the conclusion that the Veteran’s disability was productive of occupational and social impairment with reduced reliability and productivity although the reported symptoms were identical to those found during the August 2018 examination wherein the examiner found his symptoms were productive of occupational and social impairment with deficiencies in most areas. 2. Conduct any other development deemed appropriate. 3. Readjudicate and issue a Supplemental Statement of the Case in these matters to the Veteran and his attorney. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel