Citation Nr: 21075265 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-58 959 DATE: December 20, 2021 ORDER Entitlement to an effective date of February 27, 2006 for dysthymic disorder is granted. FINDINGS OF FACT 1. The March 2008 rating decision is not final. 2. The Regional Office mailed the February 2011 statement of the case to the incorrect representative. 3. The Veteran's dysthymic disorder warranted a 70 percent evaluation for the entire period on appeal beginning on February 27, 2006. CONCLUSION OF LAW The criteria for an effective date of February 27, 2006 for the assignment of a 70 percent evaluation for dysthymic disorder have been met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1983 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran died in May 2021, and his widow has been recognized as a substitute claimant. The Board acknowledges that this issue was previously denied in a September 2019 Board decision. At that time, the Board denied an earlier effective date. The Veteran through his attorney submitted a motion for reconsideration of the Board's September 2019 decision. However, this issue was later dismissed by the Board in June 2021 due to the Veteran's death. At that time, the Veteran's widow had not yet been recognized as a substitute. The issue is again before the Board for adjudication because the Veteran's widow is now a substitute claimant. EFFECTIVE DATE Section 5110(a), title 38, United States Code, provides that [u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim...of compensation...shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection will be the date of receipt of the claim or the date entitlement arose, whichever is the later. For a claim for increased rating, if the increase is factually ascertainable within one year prior to the receipt of the claim, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to receipt of the claim, the increase will be effective on the date of claim. Further, if the increase occurred after the date of claim, the effective date will be the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1), (2); VAOPGCPREC 12- 98 (1998). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. 38 U.S.C. § 5101 (a) (West 2014); 38 C.F.R. § 3.151 (a) (2014). An informal claim may be any communication or action indicating intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); 38 C.F.R. §§ 3.1 (p), 3.155(a) (2013). An informal claim must be written and it must identify the benefit being sought. Although a claimant need not identify the benefit sought with specificity, some intent on the part of the veteran to seek benefits must be demonstrated. The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to determine all potential claims raised by the evidence, applying all relevant laws and regulations, and extends to giving a sympathetic reading to all pro se pleadings of record. However, the case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Under the provisions of 38 C.F.R. § 3.157 (b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 1. Entitlement to an effective date of February 27, 2006 for dysthymic disorder The Veteran's widow contends that his service-connected dysthymic disorder warrants a disability rating in excess of 70 percent prior to August 2014. Specifically, the Veteran's attorney argues that the February 2011 statement of the case was mailed to the incorrect representative in the case and therefore, an earlier effective date is warranted. The RO received the Veteran's claim to for depression and anxiety secondary to pain from his service-connected disabilities on February 27, 2006. The RO granted service connection for the Veteran's dysthymic disorder in a March 2008 decision and assigned a 30 percent rating effective February 27, 2006. This decision was mailed on March 27, 2008. The Veteran, through his attorney, filed a notice of disagreement (NOD) with this decision that was received by the RO on March 25, 2009. A subsequent August 2010 Board remand noted that no statement of the case had been issued for the psychiatric disability, among other disabilities. The RO acknowledged that the Veteran had a private attorney (C.K.) in an April 2020 email. In an August 2010 remand, the Board carbon copied the Veteran's attorney C.K. The attorney informed VA of the Veteran's new address in September 2010. Pursuant to the Board's remand, a statement of the case (SOC) was issued in February 2011, but the RO mailed it to the Veteran and Disabled American Veterans (DAV) and not to the Veteran's current attorney (C.K). The Veteran did not submit a timely substantive appeal. In August 2014, the Veteran's attorney argued that the Veteran should receive an earlier effective date for dysthymic disorder. In an October 2014 decision, the RO assigned a 70 percent evaluation effective August 5, 2014. The Veteran filed a NOD with the rating assigned for the dysthymic disorder. A statement of the case was issue in August 2016, and the Veteran appealed this issue to the Board. Here, the Board finds clear evidence that there was no regularity in the VA's mailing process, because the SOC transmittal letter shows it was mailed to the wrong representative, DAV and not to the Veteran's current attorney. See Crain v. Principi, 17 Vet. App. 182, 188 (2003). Therefore, the Board finds the time for the Veteran to perfect his appeal as to March 26, 2008, rating decision remains open until the RO corrected its' mailing error by providing the Veteran's representative with notice of the February 16, 2011, SOC; which corrective action was never taken by the RO. The Board acknowledges that the Veteran filed for an increased rating for a dysthymic disorder on August 5, 2014. However, this new claim did not correct the error of the RO sending the February 2011 SOC to the incorrect representative. As the March 26, 2008 rating decision is not final, the Board reviewed the entire appeal period to determine if a 70 percent evaluation was warranted throughout the appeal period. Under 38 C.F.R. § 4.130, Diagnostic Code 9433, a 70 percent evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. Id. A March 2015 VA treatment record notes the Veteran's reports that he had suicidal ideation since 2004. During the September 2014 examination for his psychiatric disability, the examiner noted that a December 2007 treatment record noted severe dysthymic disorder related to medical conditions. During the 2014 examination, the Veteran reported that in the past, he tried to kill himself by not taking his blood medication. This evidence shows that the Veteran's dysthymic disability symptoms reflect a 70 percent disability rating throughout the appeal period. Based on this evidence, an effective date of February 27, 2006 for the assignment of a 70 percent rating for dysthymic disorder is warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tahirih S. Samadani, 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.