Citation Nr: 20007186 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 19-18 739 DATE: January 28, 2020 ORDER An earlier effective date prior to November 29, 2017, for the grant of service connection for unspecified depressive disorder is denied. REMANDED An increased initial disability rating in excess of 30 percent for unspecified depressive disorder. A total disability rating based on individual unemployability due to service-connected disability (TDIU).   FINDING OF FACT The Veteran filed an intent to file a claim of service connection for major depression on November 29, 2017; no prior claim indicated an intent to claim service connection for this disability. CONCLUSION OF LAW The criteria for an earlier effective date prior to November 29, 2017, for the grant of service connection for unspecified depressive disorder, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.151, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1976 to September 1998. The case is on appeal from an April 2018 rating decision. The TDIU issue has been raised as a component of the increased initial rating claim on appeal. Thus, it is presently in appellate status before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Although the Board is remanding other claims for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). An earlier effective date prior to November 29, 2017, for the grant of service connection for unspecified depressive disorder. The Veteran in this case is service connected for unspecified depressive disorder (herein after “depression”). Service connection was granted in an April 2018 rating decision effective from November 29, 2017. The RO found that this was the date the Veteran filed an intent to file a claim. The Veteran filed a VA Form 21-0958, Notice of Disagreement (NOD), disagreeing with the effective date assigned. Neither the Veteran nor his experienced representative has offered any statement that the Board can liberally construe or read sympathetically to determine why he believes an earlier effective date is warranted. A. Applicable Law The effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). B. Discussion The Veteran filed a VA Form 21-0966, Intent to File a Claim, on November 29, 2017, the current effective date. He followed by filing a VA Form 21-26EZ, Application for Disability Compensation and Related Compensation Benefits, within one year in March 2018. Prior to this time, the Veteran filed several compensation claims for other conditions. None of them indicated an intent to seek service connection for a psychiatric disability. First, in October 1998, he filed an original claim of service connection for five disabilities, including the lumbar spine disability upon which the secondary grant of service connection for depression was eventually based. He did not refer to depression in that claim. He filed an increased rating claim in December 2000 for two unrelated disabilities. There is no reference to depression. In October 2012, the Veteran filed an increased rating claim for the lumbar spine disability and sleep apnea. He wrote that it “affected my legs and knees,” but he did not refer to depression. He then filed a supporting statement in November 2012. He again referred to pain radiating to his legs, knees, and feet, but did not indicate any effect on his mental health. In that same statement, he commented on his sleep apnea symptoms associated with a stressful day at work. But, he did not refer to depressive symptoms. With that November 2012 statement, he included statements from his wife and medical records pertaining to sleep apnea. He also submitted copies of service treatment records (STRs). None of these supporting documents referred to mental health symptoms. The Veteran filed a supplemental claim in March 2014. He claimed service connection for three disabilities, including a right leg condition secondary to the lumbar spine disability. Again here, the Veteran submitted additional medical records and supporting statements, none of which refer to depression. He filed subsequent claims in January 2016 and May 2016. These included claims for conditions secondary to the lumbar spine disability. With the May 2016 claim, he include a medical report pertaining to the lumbar spine. There were no references to depression. The next claim was the instant intent to file in November 2017. In short, the Veteran filed an original claim of service connection for depression in connection with the November 29, 2017 Intent to File. The scope of the earlier claims did not include depression because the Veteran did not reference or describe symptoms of any mental health symptoms in those claims and the supporting medical evidence did not contain information indicating that the Veteran’s lumbar spine disability involved depression. See Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). As such, the November 29, 2017 claim is the original claim of service connection for depression. In short, the current effective date of November 29, 2017, is the date he submitted an original an intent to claim this benefit. Because the effective date is the later of either the date of claim or when entitlement arose, the preponderance of the evidence is against an earlier effective date. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, an effective date earlier than November 29, 2017, for the grant of service connection for depression, is not warranted. REASONS FOR REMAND 1. An initial disability rating in excess of 30 percent for unspecified depressive disorder. The Veteran last underwent a VA examination for this disability in April 2018. There has been no indication of a material worsening in the disability level since then. However, the VA examination states that the Veteran had treatment through a private psychiatrist. In support of his claim, the Veteran submitted a February 2018 letter from this private provider. In the letter, the psychiatrist wrote that he had treated the Veteran since November 2017. The psychiatrist did not include a copy of the associated treatment records, nor did the psychiatrist include a comprehensive summary of the treatment during that time period. Because the private treatment records are potentially relevant, the Veteran should be given the opportunity to provide a release for the records or obtain the records and provide them to VA. See 38 C.F.R. § 3.159(e)(2). 2. A TDIU. In support of his claim, the Veteran submitted a September 2019 report from a private examiner. In the report, the examiner summarized the relevant information. This included two residual functional capacity evaluations, which, according to the examiner, contained a favorable opinion and information regarding the Veteran’s capacity for gainful employment. The two residual functional capacity evaluations are not in the claims file. The examiner stated that she reviewed the claims file and conducted a telephone interview with the Veteran. She did not refer to the Veteran providing any additional documents. Hence, it is not clear where the examiner obtained these reports. The Board observes that the phrase “residual functional capacity evaluation” is normally a term of art associated with testing done by the Social Security Administration (SSA). It is not clear if the private examiner was using the phrase with this specific meaning. The Veteran has not indicated he receives disability benefits from SSA. Likewise, the private examiner identified one of the residual functional capacity evaluations as having been completed by a provider who is one of the Veteran’s VA providers. According to the examiner, it was done in July 2019. The claims file currently includes VA medical records only through June 2018. This indicates that the missing evaluation(s) may be in his VA medical records. Regardless, the report identifies relevant information. It is directly relevant to merits of the TDIU issue, but is also needed to ensure that the private examiner made a full and accurate review of the relevant information. Upon remand, those reports should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. Belvins and Dr. Hanson, plus any other private provider having relevant information. (Continued on the next page)   Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records since June 2018. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.