Citation Nr: 21064218 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 15-31 389A DATE: October 19, 2021 ORDER An effective date of July 26, 1989, for the award of service connection for major depressive disorder (MDD) with psychosis is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. In July 1989, the Veteran filed an application to reopen his previously denied claim for service connection for a nervous condition. 2. In October 1989, the Regional Office (RO) issued a deferred rating decision, and in November 1989 the Veteran was informed that new and material evidence would be required to re-open his claim. 3. In August 1990, new and material evidence was constructively made a part of the claims file, resulting in the Veteran's claim for service connection remaining pending. 4. The October 1989 deferred rating decision continued to remain pending until the agency of original jurisdiction (AOJ) issued the February 2011 rating decision, wherein service connection for major depressive disorder with psychosis was granted with an effective date of July 27, 2004. CONCLUSION OF LAW The criteria for an effective date of July 26, 1989, for the award of service connection for the Veteran's acquired psychiatric disability claim have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(a)-(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had honorable active service with the United States Army from November 1969 to November 1971. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2018. A written transcript of the hearing has been prepared and is associated with the claims file. In May 2019, the Board issued a decision which denied entitlement to an earlier effective date for service connection for MDD with psychosis. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Court filed a Memorandum Decision which set aside the Boards May 2019 decision. The Court concluded that the Board erred when it failed to determine whether the October 1989 deferred rating decision and subsequent 1989 letter were final. The Court pointed out that the Veteran underwent a VA psychology evaluation in August 1990 that detailed the Veteran's military struggles and included an opinion from the psychologist that the Veteran's mental condition may have had its onset in service. The Court found that since this record was generated by the VA and reasonably related to the Veteran's claim, this record should have been constructively possessed by the VA within one year of the November 1989 letter. After the Court Memorandum decision, the claim was returned to the Board. The Veteran's representative also filed an Appellate Brief, which has been considered before adjudication. An effective date of July 26, 1989, for the award of service connection for MDD with psychosis is granted. The Court returned this claim to the Board to determine whether the October 1989 deferred rating decision and subsequent 1989 letter were final. In consideration of the Court's Memorandum Decision, the Board finds that the deferred rating decision and subsequent 1989 letter were not final and therefore has granted the Veteran his claim for an earlier effective date of July 26, 1989. In general, the effective date of an award of compensation and rating based on an original claim, a claim reopened after final allowance, 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(b)(2)(i). However, the United States Court of Appeals for the Federal Circuit has held that the creation of VA treatment records containing new and material evidence within one year of a legacy decision may vitiate the finality of that decision, without regard to whether VA adjudicators are notified of the existence of these records within one year of that decision. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). Specifically, 38 C.F.R. § 3.156(b) provides that new and material evidence received prior to the expiration of the appeal period, i.e., within one year of the issuance of a rating decision, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Further, if an AOJ renders a decision, but receives new and material evidence within the time the claimant has to appeal, such decision does not become final until the AOJ acts on the evidence. Lang, 971 F.3d at 1350. In the instant claim, the Veteran filed an application for benefits in July 1989 to reopen his claim for a nervous condition. See VA 21-526 received July 1989. The RO filed a deferred rating decision in October 1989, and then the next month, sent a letter to the Veteran. The November 1989 letter stated that the Veteran had to file new and material evidence with his claim to reopen the previously denied claim for service connection for a nervous condition. The letter explained that he had a year to file new and material evidence. See MAP-D Development Letter received November 1989. The Veteran was seen at the VA in August 1990 for psychological testing and treatment. The examination not only provided relevant evidence as to the onset of the Veteran's psychological symptoms, but the examiner stated that he believed that the Veteran probably had a thought disorder with onset occurring while in the military. See Medical Treatment Record-Government Facility received October 2004. The August 1990 VA treatment was performed at the VA within a year of the Veteran's October 1989 deferred rating decision. Although the record suggests that the August 1990 record was not actually in the VA claims file, this medical treatment constituted new and material evidence, constructively possessed by the VA, and not addressed by the RO. See Lang, 971 F.3d at 1348-50. Thus, the October 1989 deferred rating decision and November 1989 letter, discussed above, were not final. In January 1999, the Veteran filed again to reopen his claim for service connection for a nervous condition, but the RO denied the claim for lack of new and material evidence. See Third Party Correspondence received January 1999, Rating Decision dated February 2000. The RO did not address the VA psychological testing from August 1990. Therefore, the October 1989 deferred rating decision and November 1989 letter remained pending. Then the Veteran filed another application to reopen his claim for a psychiatric disorder in July 2004, which was the basis for the previously granted effective date of July 27, 2004. See VA 21-4138 received August 2004, Rating Decision Narrative dated February 2011. Considering that the October 1989 deferred rating decision, and subsequent letter continued to remain pending until the RO issued the February 2011 rating decision, the correct effective date of the claim should be the date his pending claim was first received. Accordingly, the Board finds that the appropriate effective date in this case for the award of service connection for the Veteran's acquired psychiatric condition, described as MDD with psychosis, is July 26, 1989. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.