Citation Nr: 21073367 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-63 405 DATE: December 8, 2021 ORDER Entitlement to an effective date of October 5, 2010, but no earlier, for the award of service connection for major depressive disorder is granted. FINDINGS OF FACT 1. The Veteran filed an original service connection claim for depression on October 5, 2010. His claim was denied in a March 2011 rating decision. The Veteran did not file a Notice of Disagreement (NOD) with respect to that claim. 2. The Veteran filed a petition to reopen his claim for service connection for depression on June 17, 2014. Service connection was awarded effective from that date. The Veteran appealed and requested an effective date of October 5, 2010. 3. Evidence was received within one year of the March 2011 rating decision that remained unadjudicated, and the Agency of Original Jurisdiction (AOJ) did not rule on whether the evidence was new and material. Thus, the March 2011 rating decision was not final. CONCLUSION OF LAW The criteria for an effective date of October 5, 2010, but no earlier, for the award of service connection for major depressive disorder have been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.156, 3.400, 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 1979 to April 1985. He appealed an October 2014 rating decision by the AOJ. On his December 2016 VA Form 9, the Veteran requested a Board hearing. The Board attempted to schedule one in September 2019, but a notice letter was returned as undeliverable. The Board sent the Veteran another letter in March 2021, attempting to schedule a hearing for June 2021, but postponed the hearing after the Veteran could not be reached by telephone and e-mail. See May 2021 VA Form 27-0820. In September 2021, the Board sent the Veteran a letter to an updated address attempting to schedule a hearing for October 15, 2021. See September 2021 correspondence. The Board attempted to contact the Veteran by telephone and e-mail to confirm his attendance but was unable to reach him. The Veteran did not appear for his October 2021 Board hearing, and he was marked as a "no-show." In November 2021, the Board attempted to reach the Veteran by telephone and left him a message about his requested hearing, but as of December 6, 2021 no response has been received. See December 2021 Report of Contact. Given that the September 2021 hearing letter was not returned as undeliverable and the Veteran did not appear for his scheduled hearing, the Board considers his hearing request withdrawn. 38 C.F.R. § 20.704 (d). Since the November 2016 Statement of the Case, new VA treatment records have been added to the record. Generally, the Board may not consider additional relevant evidence previously unreviewed by the AOJ; however, the evidence is not pertinent to the substance of the Veteran's appeal for an earlier effective date, so a waiver by the Veteran is unnecessary. See 38 C.F.R. § 20.1305(c). 1. Earlier Effective Date 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 on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Veteran filed an original service connection claim for depression on October 5, 2010, which was denied in a March 2011 rating decision. Although the Veteran submitted a NOD with respect to another issue adjudicated in that decision, he did not appeal the denial of depression. However, within a year of the March 2011 decision, the AOJ received a submission from the Veteran documenting his report of having mild depression. Additionally, two psychological functional capacity evaluations of the Veteran were added to the claims file during that period. See September 2011 VA Memo, October 2011 Medical Treatment Records, and January 2012 Medical Treatment Records. Generally, a Veteran must file a NOD to an AOJ decision within one year from the date that the AOJ mails notice of its decision. See 38 C.F.R. § 20.302. Otherwise, the decision becomes final. Id.; see 38 U.S.C. § 7105 (b)(1), (c). However, 38 C.F.R. § 3.156 acts as an exception to this general rule. VA must consider any new and material evidence received during the one-year appeal period following an AOJ decision "as having been filed in connection with the claim which was pending at the beginning of the appeal period." 38 C.F.R. § 3.156 (b). VA has an express regulatory obligation to decide the character of the new evidence submitted. See Beraud v. McDonald, 766 F.3d 1402, 1406 (Fed. Cir. 2014). A claim remains pending, despite a subsequent final decision, until VA determines that evidence timely submitted after the decision on the initial claim was not new and material as described in § 3.156(b). Id. at 1405. In Beraud, the Federal Circuit held that VA must provide a determination that is directly responsive to the new submission and that, until it does so, the claim at issue remains open. Id. at 1407. Recently, the Federal Circuit, in a discussion of constructive possession under an earlier effective date framework, noted that "a veteran's own medical records, generated by the VA itself, are always reasonably related to a veteran's claim." See Lang v. Wilkie, 971 F.3d 1348, 1355 (Fed. Cir. 2020). Here, vocational rehabilitation records were added to the claims file within one year of the AOJ's March 2011 rating decision. These records reflect treatment for depression and are therefore related to the Veteran's claim. Thus, VA has an obligation to consider the evidence received after its March 2011 rating decision as having been filed in connection with the Veteran's October 2010 claim. VA did not decide whether these records were new and material. Therefore, the Veteran's October 2010 claim remained pending. Having found that the Veteran's October 2010 claim remained pending does not end the inquiry. The Board must also determine whether entitlement arose as of October 5, 2010, or at least prior to June 17, 2014. The Veteran was afforded a VA examination in September 2014. The examiner determined that the Veteran had a diagnosis of persistent depressive disorder. Based on the Veteran's history, physical exam, and review of medical records, the examiner opined that the Veteran's depressive disorder was related to service, noting that the Veteran had "clearly and persistently struggled" with his psychiatric symptoms since discharge. Moreover, the Veteran's March 1985 separation report of medical history notes he endorsed depression or excessive worry and nervous trouble. Thus, the Board finds that the preponderance of the evidence indicates that entitlement arose as of October 5, 2010. (Continued on the next page) Therefore, an effective date of October 5, 2010, is warranted. However, an effective date earlier than October 5, 2010, is not warranted. The Veteran did not file a previous claim for service connection for a psychiatric disorder. Accordingly, an effective date of October 5, 2010, but no earlier, for the award of service connection for major depressive disorder is granted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.