Citation Nr: 21010268 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 20-12 613 DATE: February 24, 2021 ORDER An earlier effective date of January 21, 2016 is granted for the award of service connection for unspecified depressive disorder with anxious distress, subject to the statutes and regulations governing retroactive payments. FINDING OF FACT New and material evidence was received during the one-year appeal period following a June 2016 rating decision considering and denying entitlement to service connection for a mental disorder – including posttraumatic stress disorder (PTSD); the January 21, 2016, claim for this disability precipitating that decision consequently remained pending until eventually granted. CONCLUSION OF LAW The criteria are met for an earlier effective date of January 21, 2016 for the award of service connection for an unspecified depressive disorder with anxious distress. 38 U.S.C. §§ 5103A, 5110, 7105; 38 C.F.R. §§ 3.159, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1962 to January 1966 and from November 2003 to November 2004. This appeal to the Board of Veterans’ Appeals (Board) is from a September 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for unspecified depressive disorder with anxious distress (which initially had been claimed as PTSD) and assigned a 30 percent rating for this mental disorder retroactively effective from July 18, 2018. The Veteran’s appeal is for an earlier effective date for this award, so concerning this “downstream” issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran testified in support of this claim during a hearing in February 2021 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. The Board has advanced this appeal on the docket owing to the Veteran’s age. An earlier effective date of January 21, 2016 is granted for the award of service connection for unspecified depressive disorder with anxious distress The Veteran contends that the June 2016 rating decision previously considering and denying his claim of entitlement to service connection for a mental disorder never became a final and binding determination concerning this claim since the Agency of Original Jurisdiction (AOJ), i.e., RO had constructive – if not actual, possession of a VA record even then that partly formed the basis of the eventual grant of this benefit. His representative specifically references a February 2017 VA medical opinion from a treating physician that was submitted in support of the claim, thus, the original claim remained pending until eventually granted.   After reviewing the evidence in the file, the Board agrees with this argument and finds that the AOJ (RO) had constructive – if not actual, possession of this critical VA record that was pertinent to establishing the Veteran’s claim. Notably, in a precedent decision of the U. S. Court of Appeals for Veterans Claims (Court/CAVC), with respect to VA treatment records, it was clarified that "something more than mere creation is required" to prove that VA constructively possessed the records. See Turner v. Shulkin, 29 Vet. App. 207, 217 (2018). The Court explained that, in the context of 38 C.F.R. § 3.156(b), and dealing exclusively with VA treatment records, constructive receipt requires "knowledge by VA adjudicators at the [Veterans Benefits Administration (VBA), i.e., RO] of the existence of those VA treatment records within the one-year appeal period." Turner, 29 Vet. App. at 218. Turning to this case, at hand, the Board finds the AOJ (RO) had this required constructive knowledge of this VA record. In February 2017, the Veteran submitted a Statement in Support of Claim (VA Form 21-4138) and a VA medical record from his treating physician providing an opinion regarding the Veteran’s diagnosis, treatment, and progression. In response to that submission, the RO notified him of how to file a “new” claim rather than accepting that submission and supporting evidence as relating to the claim he already had filed the prior year, in January 2016, and that had been considered and denied in June 2016, so less than a year earlier. Moreover, in March 2017, the Veteran advised the RO that he did not want to file a “new” claim, instead, that his February 2017 submission was evidence in response to his existing claim. As such, he provided notice that this VA medical evidence should be considered in support of his already existing claim – not, instead, as a “new” claim. In other words, he notified this RO this evidence should be considered new and material to his existing claim. According to 38 C.F.R. § 3.156(b), for pending legacy claims not under the modernized review system (Appeals Modernization Act (AMA)), new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Thus, the Board must assess whether, pursuant to 38 C.F.R. § 3.156(b), the record constituted new and material evidence, as defined in subsection (a), see Voracek v. Nicholson, 421 F.3d 1299, 1304 (2005) ("[A]lthough the history behind § 3.156 is silent regarding whether the definition found in paragraph (a) applies to paragraph (b), it is logical the terms "new" and "material" have the same meaning throughout the entire section."). This, in turn, will permit the Board to determine whether the June 2016 rating decision initially considering and denying this claim ever became a final and binding determination so as to preclude assignment of an effective date back to that earlier point in time. See id. ("The Court makes one final point regarding VA's duties once VA has constructive receipt of VA treatment records. At that time, VA must determine whether the VA treatment records are new and material such that 38 C.F.R. § 3.156(b) applies and finality of the prior adjudication is vitiated. A determination that constructive receipt applies does not automatically mean that the claimant is granted benefits, only that VA must make a new and material evidence determination."); see also Beraud v. McDonald, 766 F.3d 1402, 1406 (2014) ("As we made clear in Bond, the VA's obligations under § 3.156(b) are not optional."); Bond v. Shinseki, 659 F.3d 1362, 136869 (2011) (Requiring remand for VA to consider, thirteen years later, whether a February 1998 submission from a Veteran during an appellate period properly was treated as an entirely new claim or whether that submission constituted new and material evidence so as to render his original claim pending, entitling him to an earlier effective date). New evidence is evidence not previously submitted to agency decision makers, and material evidence is evidence that, by itself, or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a).   When the Veteran's claim originally was denied in June 2016, VA noted that he did not at the time have a formal diagnosis of PTSD. However, the February 2017 medical opinion from his VA treating physician constituted new and material evidence because it indicated the Veteran met the criteria for PTSD and trauma- related stress disorder, which previously was an unestablished element of his claim. See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The Board consequently finds that this information provided in February 2017, well within a year of the June 2016 decision concerning this claim, certainly is new and material and, thus, must be considered as having been filed in connection with the Veteran's original claim on January 21, 2016. See 38 C.F.R. § 3.156(b). It follows that the Veteran is entitled to that earlier effective date – meaning January 21, 2016, since that was when he filed his claim for a mental disorder that eventually was granted, albeit ultimately in the guise of a different diagnosis (unspecified depressive disorder with anxious distress rather than PTSD, per se). 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In deciding a claim, VA must acknowledge all diagnoses, not just the one specifically claimed. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.