Citation Nr: 21006456 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-55 279 DATE: February 4, 2021 ORDER An effective date of March 2, 1981, but no earlier, for the award of entitlement to service connection for recurrent depressive disorder is granted. FINDINGS OF FACT 1. On March 2, 1981, the Veteran claimed entitlement to service connection for a nervous condition. A June 1981 rating decision denied entitlement to service connection for a nervous condition because the evidence did not show diagnosis of or treatment for a nervous condition. 2. On July 16, 1981, the Veteran was notified of the June 1981 rating decision. On July 27, 1981, August 17, 1981, and February 19, 1982, the agency of original jurisdiction (AOJ) received new and material evidence relating to the presence of a current psychiatric disability. 3. In May 1982, the Veteran sought to reopen his claim for compensation. In July 1983, the AOJ mailed notice of a scheduled examination to the Veteran at an incomplete address. In September 1983, the AOJ notified the Veteran that his claim was denied due to failure to report for the examination. The September 1983 decision notification was mailed to the correct and complete address of record of the Veteran. The Veteran did not timely appeal the September 1983 decision and new and material evidence was not received within one year of that decision. 4. In June 2016, the AOJ associated with the claims file official service department records; these records existed and had not been associated with the claims file when VA first decided the claim; and the Veteran provided sufficient information for VA to identify and obtain the records from the appropriate official source at the time of his original claim. 5. In September 2016, a VA-contracted examiner opined that the Veteran’s recurrent depressive disorder was at least as likely as not incurred in or caused by the Veteran’s service. The examiner specifically cited to evidence included in the service department records associated with the claims file in June 2016. 6. The Veteran’s entitlement to service connection for recurrent depressive disorder arose as of March 2, 1981. CONCLUSIONS OF LAW 1. The June 1981 rating decision is not final. 38 C.F.R. § 3.156(b). 2. The September 1983 adjudication is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. Reconsideration of the September 1983 decision is warranted. 38 C.F.R. § 3.156(c). 4. The criteria for an effective date of March 2, 1981, but no earlier, for the award of service connection for recurrent depressive disorder are met. 38 U.S.C. §§ 1110, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.156(c), 3.303, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1971 to December 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision of an AOJ of the Department of Veterans Affairs (VA). In October 2019, the Board denied entitlement to an effective date prior to February 9, 2016 for the grant of service connection for recurrent depressive disorder. The Veteran appealed the October 2019 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In August 2020, the CAVC granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of Veterans Affairs (Parties), vacated the October 2019 Board decision, and remanded the matter to the Board for compliance with the JMR instructions. The Parties to the JMR agreed that the Board erred when it failed to address the potential applicability of 38 C.F.R. § 3.156(c). Moreover, the Parties agreed that the Board erred when it failed to address the presumption of regularity with respect to a July 1983 notification scheduling an examination. See August 2020 JMR. Presumption of Regularity The August 2020 JMR notes that a discussion of the presumption of regularity is warranted with respect to the July 1983 notification letter, as that letter did not include the Veteran’s complete address. See August 2020 JMR at 3-4. The presumption of regularity has the effect of presuming that VA fulfilled its duties. See Romero v. Tran, __ Vet. App. ___, No. 19-3687, 2021 U.S. App. Vet. Claims LEXIS 78 (Jan. 25, 2021). Here, the relevant duties including the duty to notify the Veteran of scheduled examinations and of VA decisions. See August 2020 JMR. The existence of a legal duty is enough for the presumption of regularity to attach. Romero, 2021 U.S. App. Vet. Claims LEXIS 78 at *20-*28. Once the presumption attaches, the next question is whether there is clear evidence to rebut the presumption, and if there is clear evidence of irregularity then the presumption is rebutted and the burden shifts to the VA to prove that it did its duty in this case. See id., at *28-*29. Though a statement of nonreceipt of nonreceipt standing alone is not enough to rebut the presumption, a statement of nonreceipt coupled with other evidence can be. Id. Other evidence can include, for example, “clear evidence to the effect that VA’s ‘regular’ mailing practices are not regular or that they were not followed.’” Id. (quoting Ashley v. Derwinski (Ashley II), 2 Vet. App. 307, 309 (1992). Here, the presumption of regularity attaches, as VA was required to notify the Veteran of a scheduled examination and of the denial of any claim. See 38 C.F.R. § 3.103. With respect to the July 1983 notice scheduling an examination, the presumption of regularity is rebutted. In this regard, the Veteran asserts that he never was notified of the examination, and the record demonstrates that the notice was sent to an address that omitted the Veteran’s apartment number. See July 1983 Notification Letter. However, the record demonstrates that the Veteran was notified of the September 1983 decision that his claim was denied due to failure to report for the examination scheduled in July 1983. In this regard, the September 1983 notification includes the Veteran’s complete address, including his apartment number. See September 1983 Notification. The irregularity in the July 1983 examination notice does not weigh against this finding, as the July 1983 notice was addressed by hand and the September 1983 notification was a computer printout and includes the full address. Moreover, there is no evidence that the September 1983 decision was not received, such as would be shown by returned mail in the file. Here, the evidence shows that the Veteran was not notified of the July 1983 examination, and then in September 1983 he was notified that his claim was denied due to failure to report for an examination. However, the Veteran did not timely appeal the September 1983 notification or submit new and material evidence within one year. Thus, the September 1983 decision is final, as it was attendant on the Veteran to appeal the 1983 notification if he believed it was in error. The Board acknowledges the Veteran’s assertion of clear and unmistakable error (CUE) in the September 1983 determination that he was not notified of the July 1983 examination. See October 2018 VA Form 21-4138. While a finding of CUE can result in the revision of a final determination, the Board at present lacks jurisdiction over this allegation of CUE. However, referral of this CUE motion to the AOJ is unnecessary. As discussed below, the full benefit sought by the Veteran can be awarded on an alternate basis. 38 C.F.R. § 3.156(c) The Veteran asserts that he is entitled to an earlier effective date pursuant to 38 C.F.R. § 3.156(c), as his service personnel records were not associated with the claims file until 2016, and as evidence in these records were a partial basis for the award of service connection for recurrent depressive disorder. See August 2020 JMR at 1-3. The Board agrees. Initially, the Board observes that the June 1981 rating decision is not final. In this regard, that decision denied entitlement to service connection for a nervous condition because the evidence did not show diagnosis of or treatment for a nervous condition. On July 27, 1981, August 17, 1981, and February 19, 1982, the AOJ received new and material evidence relating to the presence of a current psychiatric disability. Specifically, Dr. Z, the Veteran’s physician, reported that the Veteran had emotional problems and was depressed. See, e.g., August 1981 Correspondence. While Dr. Z’s correspondence does not include a formal diagnosis, new and material evidence only needs to “relate” to an unestablished fact necessary to establish entitlement to a benefit. His correspondence meets that threshold and was not previously of record, and thus it is new and material. As it was received within one year of notification of the June 1981 rating decision, that decision is not final. See 38 C.F.R. § 3.156(b). Thus, the Veteran’s March 2, 1981 claim remained pending. However, as noted above, the September 1983 determination is final. Thus, the key question is whether reconsideration of the previously-denied claim is warranted pursuant to 38 C.F.R. § 3.156(c) and, if so, whether the evidence supports an earlier effective date of service connection. At any time after VA issues a decision on a claim, if VA receives and associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Such service records include service records that are related to a claimed in-service event, injury or disease, so long as these records existed when VA first decided the claim and the claimant provided sufficient information for VA to identify and obtain the records from the respective official source. An award made based all or in part of such records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by VA regulations. 38 C.F.R. § 3.156(c). The effective date of an award of VA compensation that is based on an original claim or claim reopened after final disallowance shall be assigned in accordance with the facts found, but an effective date will not be assigned that is earlier than the date of receipt of the application for compensation. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). Here, reconsideration of the March 2, 1981 claim is warranted, notwithstanding the September 1983 denial. In this regard, in June 2016 the AOJ first associated the Veteran’s service personnel records with the claims file. See June 2016 Military Personnel Record. These records are official service department records that existed when VA first decided the claim, and the Veteran provided sufficient information for VA to identify and obtain them when VA first decided the claim. Critically, these records had not been associated with the claims file when VA first decided the claim. In this regard, the June 1981 rating decision only mentions the Veteran’s service medical records and does not mention personnel records. See June 1981 Rating Decision. Moreover, the AOJ’s request for records only requested “complete medical records & dental to include entrance and discharge exams” but did not request the Veteran’s complete personnel file. See March 1981 Request for Information. Furthermore, the September 2016 award of service connection for recurrent depressive disorder was based in part on these service personnel records. In this regard, a June 20, 1973 Statement of Personal History includes the Veteran’s statement “I hate the Army.” See June 1973 DD Form 398 at 2. In September 2016, the AOJ listed evidence including the Veteran’s service personnel records and a medical opinion as the basis of the award of service connection for recurrent depressive disorder. See September 2016 Rating Decision. Critically, the VA-contracted examiner who authored the medical opinion specifically listed the Statement of Personal History as evidence considered, and the examiner’s rationale specifically noted the Veteran’s documented “hate” for the Army. See September 2016 Medical Opinion at 2. Thus, as the VA received the previously decided claim on March 2, 1981, the final question is when the entitlement to service connection for recurrent depressive disorder arose. Here, the Veteran’s March 1981 claim notes that he had been treated by Dr. Z since 1974. See March 1981 VA Form 21-526. Moreover, the September 2016 examiner explained that the Veteran “has continued to struggle with depression throughout his entire life.” See September 2016 Medical Opinion. The September 2016 examination report notes the onset of mental health treatment in 1973 with hospitalization in 1974. See September 2016 Mental Disorders Examination Report at 4 (Relevant Mental Health History). As the medical evidence of record establishes that the Veteran’s mental health history began prior to March 2, 1981, it is at least as likely as not that entitlement to service connection for recurrent depressive disorder arose on March 2, 1981. Accordingly, as all the criteria are met, entitlement to an effective date of March 2, 1981 for the award of service connection for recurrent depressive disorder is warranted. The Veteran does not assert, and the evidence does not show, entitlement to an even earlier effective date, as the VA did not receive a claim of entitlement to compensation prior to March 2, 1981. If the Veteran disagrees with the initial rating assigned by the AOJ for the period prior to his current effective date, he should seek review of that decision by filing the appropriate VA-promulgated form. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, 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.