Citation Nr: 20031701 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 16-23 504 DATE: May 6, 2020 ORDER Entitlement to an effective date prior to November 10, 2014, for the increased rating of 70 percent for an acquired psychiatric disorder, specifically of June 23, 2010, is granted. FINDING OF FACT The Veteran received treatment for depression from the VA in June 23, 2010, which was within one year of the November 2009 rating decision denying an increased rating for an acquired psychiatric disorder in excess of 50 percent. The June 23, 2010 VA medical treatment record constitutes new and material evidence and therefore, the November 2009 rating decision did not become final. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to November 10, 2014, specifically June 23, 2010, for the increased rating to 70 percent for an acquired psychiatric disorder have been met. U.S.C.§5110 (a); 38C.F.R.§3.400 (o)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1979 to July 1983 and from March 1984 to September 1989. This matter is on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which, in pertinent part, continued a 50 percent rating for somatoform pain disorder and denied entitlement to service connection for depression. In an October 2018 decision, the Board denied the Veteran’s claim of entitlement to an effective date prior to November 10, 2014, for the increased rating to 70 percent for an acquired psychiatric disorder. In its rating decision, the Board relevantly found that the November 2009 rating decision, which denied a rating increase in excess of 50 percent for his acquired psychiatric disorder, became final because the Veteran “did not appeal that decision or submit any new and material evidence within a year of that decision.” In a May 2019 joint motion for partial remand, the Court stated that the Board erred by providing an inadequate statement of reasons or bases for its finding that the Veteran did not submit new and material evidence within a year of the November 2009 rating decision which denied a rating above 50 percent for his acquired psychiatric disorder. See 38 U.S.C. § 7104 (d)(1); see also 38 C.F.R. § 3.156(b); Turner v. Shulkin, 29 Vet. App. 207, 210 (2018). Thus, the Court vacated the Board’s decision that denied entitlement to an effective date prior to November 10, 2014, for the increased rating to 70 percent for an acquired psychiatric disorder. The Court asked the Board to reexamine the evidence in the record, seek any other evidence the Board feels is necessary. On remand, the Court also asked the Board to determine whether the June 2010 VAOPC treatment record was constructively received within the year following the November 2009 rating decision such that 38 C.F.R. § 3.156(b) applies. See Turner, 29 Vet. App. at 2010. The Veteran appeared for a Board hearing before the undersigned Veterans Law Judge in March 2020. Entitlement to an effective date prior to November 10, 2014, specifically June 23, 2010, for the increased rating of 70% for an acquired psychiatric disorder In its October 2018 rating decision, the Board noted that the Veteran generally asserted in his notice of disagreement that the effective date for an increased rating should be retroactive to his original grant of service connection in September 1989. 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. 38U.S.C.§5110 (a); 38C.F.R.§3.400. That is, the effective date of an award “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application thereof.” 38 U.S.C.§5110 (a). However, in a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually “ascertainable that an increase in disability had occurred” within that timeframe. 38U.S.C.§5110 (b)(3) (formerly (b)(2)); 38C.F.R.§3.400 (o)(2); see Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010) (“It is clear from the plain language of [section] 5110(b)(2) (now (b)(3)) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim”); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an “increase” for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). In the present case, the Veteran filed a claim for a rating in excess of 50 percent for his acquired psychiatric disorder in August 2009, which was denied in a November 2009 rating decision. The Veteran did not appeal that decision. The Board initially concluded that the Veteran also did not submit any new and material evidence within a year of that decision. Accordingly, that decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.201; see also Buie v. Shinseki, 24 Vet. App. 242, 251(2010) (holding that even in increased ratings claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R.§3.156 (b) requires any subsequent decision to relate back to the original claim). The instant claim for an increased rating was received by VA on November 10, 2014. This is the current effective date assigned above for the award of the 70 percent rating for the Veteran’s acquired psychiatric disorder. In this decision and as mandated in the Court’s remand, the Board will carefully consider the evidence to determine if there is evidence of record that was received or dated earlier than November 10, 2014, that could be construed as a claim for an increased rating. The Board notes that treatment records from the Mission Valley VA outpatient center show that the Veteran received care at the primary care unit on June 23, 2010. During that visit, the Veteran scored a 6 in the Patient Health Questionnaire 2 (PHQ-2)1, the highest possible score indicating depression. The treatment note also indicates that as a result of the Veteran’s score on the PHQ-2, his provider was “notified for immediate intervention.” During the March 2020 hearing, the Veteran stated that around June 2010 he was dealing with severe depression, had isolated himself from social activities and moved into the trailer in the mountains. The Veteran stated that while suicide had crossed his mind, it was not severe. He said that he felt worthless, helpless and felt that he had lost control of a lot of things. During this time, the Veteran stated that his depression was constant, but that he continued to work night shifts so that he would avoid contact with others because he had previously had difficulty getting along with his coworkers. The Veteran also reported having difficulty adapting to stressful circumstances and experiencing irritability which caused conflict with his coworkers. He denied neglecting his personal hygiene. The Board finds the Veteran’s reporting of his psychological and emotional state on or about June 2010 credible. Although the June 23, 2010 treatment records from the Mission Valley VA were only received in January 2016, because they are VA treatment records, the Board finds that they were “constructively” received by VA adjudicators under § 3.156(b). (Continued on the next page)   The June 23, 2010 treatment record shows a heightened level of depression, and therefore reflects an increase in the Veteran’s PTSD symptoms sufficient to constitute new and material evidence received prior to the expiration of the appeal period. 38 C.F.R. § 3.156 (b). Notably, at the time of the Veteran’s November 2009 rating decision, the VA noted that he was “vaguely depressed,” but the June 23, 2010 VA medical treatment record and the Veteran’s lay statement during the March 2020 hearing reflect that his depression was so severe that it required medical intervention and that the Veteran had exhibited some suicidal ideation, and his level of irritability with co-workers forced him to switch to night shifts. Therefore, because the June 23, 2010 VA treatment note falls within the one-year appeal period after the November 2009 rating decision, and as the treatment was for depression which amounted to new and material evidence, the November 2009 rating decision did not become final. As such, the June 23, 2010 evidence of record contains a basis upon which to conclude that there was an ascertainable increase in the severity of the Veteran’s acquired psychiatric disability during the period on appeal. In sum, November 10, 2014, is not the date of the claim for an increased rating, and also not the earliest possible effective date for the 70 percent rating for the Veteran’s acquired psychiatric disorder. Because the June 23, 2010 medical treatment record constituted new and material evidence, there is a legal basis for the assignment of an earlier effective date as June 23, 2010. 38 U.S.C.§5110 (a); 38 C.F.R. § 3.400 (o)(2). Accordingly, an effective date prior to November 10, 2014, for a 70 percent disability rating for the service-connected acquired psychiatric disorder is warranted. The effective date of June 23, 2010 is warranted. N. Rippel Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. White, Associate 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.