Citation Nr: 18155831 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-36 493 DATE: December 6, 2018 ORDER Entitlement to an earlier effective date than August 30, 2006 for the award of service connection for major depressive disorder with alcohol dependence in remission is denied. REMANDED Entitlement to more than a 50 percent rating for service-connected major depressive disorder with alcohol dependence in remission is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran filed an original claim seeking service connection for a psychiatric disability, generally, on November 2, 1979; a subsequent unappealed March 1980 rating decision denied service connection for immature personality disorder but did not address the broader question of a psychiatric disability (which is distinct and different from a personality disorder). 2. Thereafter, the Veteran filed a December 31, 2002 claim to reopen service connection for a psychiatric disability and an April 10, 2003 rating decision specifically denied service connection for major depressive disorder; the Veteran did not appeal that decision and it became final based on the evidence then of record. 3. On August 30, 2006, VA received a second claim to reopen service connection for a psychiatric disability that was denied in January 2007 and May 2007 rating decisions; the Veteran initiated an appeal and the Board remanded the matter in September 2012; following further medical evaluation on remand, VA granted service connection for major depressive disorder with alcohol dependence in remission, rated 50 percent from August 30, 2006, in an April 23, 2015 rating decision (which is currently on appeal). 4. Although the Board agrees that, as the Veteran’s representative alleges, VA did not properly adjudicate the broader claim of service connection for a psychiatric disability filed in November 1979 until much later, the eventual April 2003 denial in that matter was unappealed, became final based on the evidence then of record, and nothing in the record suggests that VA received either substantive evidence (let alone new and material evidence) within a year of that decision or any pertinent service department records that would toll the finality of the April 2003 denial under 38 C.F.R. § 3.156; moreover, while the Board acknowledges the Veteran’s attorney disagreed with the scope of the prior rating decisions, at no point has he or the Veteran made any specific allegation of clear and unmistakable error. 5. Consequently, absent any basis for disturbing the finality of a prior denial in this matter, the Board finds the proper date of claim for this analysis is August 30, 2006, which is also the effective date now on appeal; considering the claim on appeal was not received within a year of military separation, that is the earliest possible effective date under the governing regulations (which provide that, under the current circumstances, the effective date is to be the later of the date of claim or the date entitlement arose). CONCLUSION OF LAW The criteria for an earlier effective date than August 30, 2006 for the award of service connection for major depressive disorder with alcohol dependence in remission have not been met. 38 U.S.C. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from June 1966 to October 1969 and September 1972 to August 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision. The matter of TDIU has been explicitly raised by the Veteran in the course of a pending increased rating appeal. Therefore, it must be considered as part and parcel of that appeal. The Board has amended the issues above accordingly. 1. Entitlement to an earlier effective date than August 30, 2006 for the award of service connection for major depressive disorder with alcohol dependence in remission Except as otherwise provided, the effective date of an evaluation and award of 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. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If the claim is received within one year after separation from service, the effective date will be the date following service separation or the date entitlement arose. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(b)(2). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also 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). In the context of a claim of service connection, the date of entitlement hinges on when the service-connected disability first manifested itself under all facts found. See McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Here, the Veteran was awarded service connection for major depressive disorder with alcohol dependence, rated 50 percent from August 30, 2006, in an April 2015 rating decision. He alleges that an earlier effective date is warranted because he filed an earlier claim for service connection for an acquired psychiatric disability that was not substantively considered until much later. In this sense, the Veteran has correctly identified the critical threshold question in this matter—as explained further below, the August 30, 2006 effective date is based on the date VA received the claim to reopen service connection for a psychiatric disability leading to the April 2015 grant on appeal. As no claims in the record seeking service connection for psychiatric disability were received within a year of separation from active service, the legal context outlined above provides that the only way an earlier effective date may be awarded is if an earlier date of claim can be applied. Thus, a detailed review of the procedural history in this matter is critical to the outcome of this claim. A review of the record shows the Veteran filed his original claim seeking service connection for a general psychiatric disability and alcoholism on November 2, 1979. However, while the subsequent March 1980 rating decision does note the Veteran claimed a psychiatric disability, the substantive denial therein only addresses a personality disorder and alcoholism. Thereafter, the Veteran filed a claim to reopen the psychiatric disability claim on December 31, 2002. This time, an April 10, 2003 rating decision did deny service connection for major depressive disorder (a psychiatric disability) substantively. After the April 2003 rating decision, the Veteran submitted no further correspondence or evidence until an August 30, 2006 claim seeking, among other benefits, to reopen service connection for a psychiatric disability. A January 2007 rating decision declined to reopen the matter and a May 2007 rating decision reconsidered and confirmed that denial. The Veteran then filed a February 2008 notice of disagreement (NOD) appealing the May 2007 denial and, following a September 2012 Board remand in the matter, VA eventually granted service connection in the April 2015 rating decision on appeal. Based on the procedural history at hand, the Board agrees with the Veteran’s attorney and finds that the Veteran’s original November 2, 1979 claim of service connection for a psychiatric disability was not substantively considered until April 10, 2003. Critically, however, he did not appeal that decision, it became final based on the evidence then of record, and, consequently, there is no basis for applying an earlier date of claim than August 30, 2006 absent some reason to disturb such finality. In general, there are three ways that the finality of a prior denial can be disturbed or set aside. First, 38 C.F.R. § 3.156(b) provides that receipt of new and material evidence within a year of the denial in question tolls the finality thereof because it must be considered as having been filed in connection with the claim that was pending at the beginning of the applicable appeal period. Second, 38 C.F.R. § 3.156(c) provides that receipt of new, pertinent service department records at any time after an otherwise final decision triggers reconsideration thereof, provided such records were available at the time and the Veteran provided sufficient information for VA to identify and obtain them. Unfortunately, as noted above, the record shows the Veteran did not file any additional correspondence or evidence following the April 2003 rating decision until the August 30, 2006 claim to reopen that led to this appeal. Therefore, 38 C.F.R. § 3.156 provides no basis for tolling the finality of the prior April 2003 rating decision. The final means of disturbing the finality of a prior decision is by demonstrating clear and unmistakable error (CUE) was committed therein. However, allegations of CUE must be pled in specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, why the result of the prior determination would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet. App. 25 (1997) (distinguishing denial of CUE due to pleading deficiency and denial of CUE on merits). Unfortunately, here, neither the Veteran nor his representative has actually alleged that CUE was committed in any prior decisions. Consequently, the Board can find no basis for disturbing the finality of the prior April 2003 denial of service connection for a psychiatric disability and, therefore, a date of claim prior to August 30, 2006 cannot be applied to this analysis. Accordingly, under the governing regulations for the award in question (and considering August 30, 2006 was not within a year of active duty discharge), the current effective date of August 30, 2006 is actually the earliest possible effective date (because it must be the later of either the date of claim or the date entitlement arose). In so finding, the Board finds the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule does not apply, and the appeal in this matter must be denied. REASONS FOR REMAND Entitlement to more than a 50 percent rating for service-connected major depressive disorder with alcohol dependence in remission and TDIU are remanded. A review of the record shows the Veteran’s most recent psychiatric evaluation is dated in 2015. As capturing an accurate current disability picture is critical to adjudicating that claim, a remand is appropriate at this time. Moreover, the TDIU matter is inextricably intertwined with the increased rating claim on appeal, as the outcome of the latter analysis will bear upon the scope and substance of the former. The matter is REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Then, arrange for the Veteran to be examined by a psychiatrist or psychologist to determine the current severity of his service-connected psychiatric disability. Based on an examination, review of the record, and any tests or studies deemed necessary, the examiner should describe all pertinent symptoms, pathology, and impairment associated with such disability in sufficient detail to allow for application of the pertinent rating criteria. Specifically, the examiner MUST identify the degree of occupational and social impairment found on examination. The examiner must also identify, by diagnosis, all psychiatric disability entities found. All diagnostic findings (or lack thereof) must be reconciled with conflicting evidence in the record and, if any documented diagnoses are either not or no longer felt to apply, the examiner must explain why, citing to the pertinent diagnostic criteria. If the Veteran is found to have other psychiatric diagnoses IN ADDITION TO his service-connected disability, the examiner must indicate whether there is clear evidence allowing for differentiation of the symptoms, pathology, or impairment attributable to service-connected and nonservice-connected diagnoses, and explain why. If so, the examiner must clearly identify all symptoms and impairment found and attribute them to their appropriate underlying diagnoses. The examiner is also asked to comment on the expected impact the Veteran’s service-connected psychiatric disability would have on his ability to function in an occupational environment, specifically identifying the types of tasks, work, or functions that would remain feasible and those that would be precluded. The examiner must provide a detailed explanation (rationale) for all opinions. (By law, the Board may not rely on any conclusion not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may require clarification). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Yuan, Associate Counsel