Citation Nr: 21010353 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-07 000 DATE: February 24, 2021 ORDER Am effective date earlier than July 8, 2014, for major depressive disorder is denied. Service connection for schizoaffective disorder as secondary to service-connected stroke based on aggravation is granted. FINDINGS OF FACT 1. The Veteran filed an original claim for chronic depression in July 2010. 2. An October 2011 rating decision denied service connection for chronic depression, which the Veteran did not appeal. 3. A September 2012 request to reopen the claim for chronic depression did not refer to or imply disagreement with the October 2011 rating decision, including when considered in the context of the record as a whole. 4. A September 2013 rating decision denied reopening the claim for chronic depression; the Veteran filed a Notice of Disagreement (NOD) in October 2013. 5. A July 2015 Statement of the Case (SOC) continued the denial of reopening the claim for chronic depression. 6. The Veteran did not perfect an appeal of the September 2013 rating decision by filing a substantive appeal (VA Form 9 or equivalent). 7. The record does not show a formal or informal claim for depression prior to July 8, 2014 that has not been adjudicated in a prior, final decision. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 8, 2014, for the grant of service connection for major depressive disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.160, 3.400. 2. The criteria for service connection for schizoaffective disorder as secondary to service-connected stroke based on aggravate have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1986 to September 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2019 decision, the Board, in part, denied an effective date earlier than May 16, 2016 for the award of service connection for major depressive disorder. In a September 2020 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR) and vacated that decision. It remanded the matter for action consistent with the terms of the joint motion. The Board notes that an effective date of July 8, 2014 has since been established by the RO, based on the award of service connection for posttraumatic stress disorder (PTSD) with major depressive disorder. A May 2020 rating decision granted a 100 percent rating for the Veteran’s posttraumatic stress disorder (PTSD) with major depressive disorder effective July 8, 2014. As the maximum evaluation for PTSD has been assigned for the entire period under appellate review, that issue is no longer before the Board. By the same token, the issue of entitlement to TDIU is moot. See 38 C.F.R. § 4.16(a) (providing, in pertinent part, that total disability ratings for compensation may be assigned when the schedular rating is less than total). The Veteran has opted the appeal of entitlement to an increased rating for his service-connected stroke into VA’s modernized appeal system. See June 2020 VA Form 10182 (Notice of Disagreement). Therefore, that claim has been withdrawn from the legacy appeal system, and is no longer before the Board under the current docket. Effective Date Generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For VA compensation purposes, a "claim" is defined as "a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary." 38 C.F.R. § 3.1(p). Prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered to be an informal claim. 38 C.F.R. § 3.155(a) (2014); see 79 Fed. Reg. 57690-5769 (2014). Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. Id. The effective date of a disability compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). The exception to this rule is when a claim is received within one year after separation from service. If a claim is received within one year after separation from service, the effective date is the day following separation from active service. 38 C.F.R. § 3.400(b)(2). Effective date of service connection for major depressive disorder. The parties to the JMPR agreed that the October 2019 Board did not provide an adequate statement of reasons or bases in denying an effective date earlier than May 16, 2016 for the award of service connection for major depressive disorder, finding that the Board had not accounted for the full procedural history. More specifically, the JMPR directs the Board to consider the July 2010 claim, October 2011 rating decision, and September 2012 correspondence. The Veteran submitted a claim for service connection for chronic depression in July 2010. In October 2011, the RO denied service connection for chronic depression. The Veteran was notified of the decision and his appellate rights in an October 2011 letter. See 38 U.S.C. § 5104; 38 C.F.R. §§ 3.103, 19.25. Under VA’s legacy appeal system, which is applicable here, a determination on a claim by the agency of original jurisdiction of which the claimant is properly notified is final if no notice of disagreement (NOD) is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.302 (2012) (setting forth requirements and timeframe for initiating and perfecting an appeal). The Board finds that the Veteran did not file a NOD within a year of the October 2011 rating decision. A September 2012 Report of General Information form (VA Form 21—0820) reflects that he came in person to the RO and, among other things, requested to reopen the claim for depression. As the September 2012 request to reopen the claim was within the one-year appellate period with respect to the October 2011 rating decision, it does not constitute a request to reopen. See Skaar v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2279 (citing Jennings v. Mansfield, 509 F.3d 1362, 1368 (2007) (holding that a claim becomes final and subject to a motion to reopen only after the period for appeal has run, and that any interim submissions before finality must be considered by VA as part of the original claim)); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that because a decision was not yet final when VA received a document requesting to reopen the claim, that document could not constitute a claim to reopen any previously denied claim). In December 2012 correspondence, the Veteran, through counsel, argued that the September 2012 request to reopen the claim should be construed as a timely NOD with the October 2011 rating decision. The Board disagrees. Under VA’s legacy appeal system, a NOD is defined by regulation as a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. 38 C.F.R. § 20.201 (2018). No special wording is required; the NOD simply requires terms that can be reasonably construed as disagreement with the determination and a desire for appellate review. Gallegos v. Principi, 283, F.3d 1309, 1314 (Fed. Cir. 2002); see Ortiz v. Shinseki, 23 Vet. App. 353, 358 (2010) (observing that "no procedural requirement in the adjudication of veterans benefits is less burdensome than the NOD"). In determining whether a statement constitutes a NOD, both the wording of the statement itself and the context in which it was written must be considered. Jarvis v. West, 12 Vet. App. 559, 561 (1999). Prior to March 24, 2015, there was no requirement that a NOD be filed on a standardized form. See 79 Fed. Reg. 57690-5769 (2014); 38 C.F.R. § 20.201 (2012). In Skaar, supra, the Court found that a letter requesting to reopen a claim within one year of a rating decision, when considered “in the context of the record as a whole,” including a new claim form and medical evidence attached to the letter, constituted a valid NOD. The Court noted preliminarily that the appellant was unrepresented, “requiring us to sympathetically read his submissions.” The Court further noted that the appellant seemed to disagree with the RO’s denial of the claim. In this regard, he referred to the earlier rating decisions that denied the claim, and “expresses disagreement with those decisions.” The Court found that while the appellant did not expressly call his submission an NOD, and instead requested reopening, “the regulation does not require any special wording.” The Skaar Court distinguished the request to reopen in that case from a request to reopen a claim addressed in Young, where the Court found that such request did not constitute a NOD. 22 Vet. App. at 467. In this case, the Board finds that the September 2012 VA Form 21-0820, which documented the Veteran’s in-person request that the claim for depression be reopened, is distinguishable from the document at issue in Skaar, and more like the request to reopen in Young. In Young, the Court held that the document at issue did not constitute a NOD because it could not be reasonably construed to express disagreement with a particular decision or reflect an intent to seek appellate review. 22 Vet. App. at 467. In this regard, the Court explained that the document stated “only the appellant’s request to ‘reopen [his]... claim for an increase in [his] PTSD rating’” and did not mention the earlier rating decision or express disagreement with the rating assigned in that decision or a review of the appellant’s PTSD disability rating. Id. Here, as in Young, and unlike the request to reopen at issue in Skaar, the Veteran’s September 2012 request to reopen the claim for depression does not refer to the October 2011 rating decision or any prior decision. Moreover, it does not suggest disagreement with the findings in that decision. Finally, unlike the facts in Skaar, there were no other documents, statements, or evidence submitted around the time of the September 2012 request to reopen so as to support a finding that it nevertheless serves as a NOD when considered in the context of the record as a whole. See Skaar, supra. The Board also observes that, unlike the appellant in Skaar, the Veteran in this case had representation at the time of the September 2012 request to reopen the claim. That said, even if he were unrepresented at the time, it would not alter the Board’s conclusion, for the reasons just discussed. Indeed, the Board is aware that the Veteran was apparently acting of his own accord, rather than through his representative, when he requested to reopen the claim in September 2012. But under the most sympathetic reading, such request cannot be construed as satisfying even the minimal requirements for a NOD. As discussed, his request to reopen essentially mirrors the request to reopen at issue in Young, which the Court found did not constitute a valid NOD. Accordingly, because the Veteran did not file a timely NOD with respect to the October 2011 rating decision, or identify or submit new and material evidence within one year of that decision, the October 2011 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see also 38 C.F.R. § 3.156(b) (providing that new and material evidence submitted within one year after the date of mailing of an RO decision will be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period’); Young v. Shinseki, 22 Vet. App. 461, 466 (2009) (holding that new and material evidence received within one year of a decision prevents that decision from becoming final). While the Board finds that the September 2012 request to reopen the claim for depression was not a valid request to reopen because it was submitted within one year of the October 2011 rating decision, see Skaar, supra, the RO nevertheless treated it as such and issued a rating decision in September 2013, which denied reopening the claim because new and material evidence was not submitted. The body of the decision states that “[t]he evidence does not support a change in our prior decision. Therefore, we are confirming the previous denial of the claim.” In October 2013, the Veteran filed a NOD with the RO’s September 2013 rating decision. A Statement of the Case (SOC) was issued in July 2015, which continued the denial of chronic depression based on lack of new and material evidence. Thereafter, the Veteran did not perfect the appeal by filing a substantive appeal (i.e. VA Form 9) within 60 days of the July 2015 SOC. See 38 C.F.R. §§ 20.200, 20.202, 20.302. (The Board notes that the remainder of the one-year appeal period following mailing of notice of the September 2013 rating decision had already passed by the time the SOC was issued. See 38 C.F.R. § 20.302). Accordingly, the September 2013 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. As the Board finds that the September 2013 rating decision is final, the effective date for service connection can be no earlier than the date of the new claim. In this regard, VA regulation provides that for reopened claims, the effective date is the date of the receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The Veteran submitted a new claim for depression as secondary to his service-connected stroke on May 16, 2016. See 38 C.F.R. § 3.310 (providing for service connection on a secondary basis). An August 2016 rating decision granted service connection for major depressive disorder as secondary to the Veteran’s stroke with an effective date of May 16, 2016, the date of new claim. See 38 C.F.R. § 3.400(r). Since that time, an effective date of July 8, 2014 has been assigned because the Veteran’s major depressive disorder is now rated in conjunction with his service-connected PTSD. More specifically, on July 8, 2014, the Veteran filed a claim for PTSD which was denied in a July 2015 rating decision. In July 2015, the Veteran filed a timely NOD. The RO issued an SOC confirming the denial of service connection for PTSD, and the Veteran perfected an appeal to the Board in February 2017. In March 2019, the Board granted service connection for PTSD. In a September 2019 rating decision, the RO effectuated that grant and awarded service connection for PTSD “with major depressive disorder” effective May 16, 2016. Subsequently, in a May 2020 rating decision, the RO granted an effective date of July 8, 2014 for the award of service connection for PTSD with major depressive disorder, based on the date of filing of the claim for PTSD. Although the Veteran’s NOD regarding the claim for depression was still pending at the time he filed the July 2014 claim for PTSD, the former claim did not reasonably encompass a claim for PTSD and, as noted, was granted on the basis of being secondary to his service-connected strokes. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (the scope of a mental health disability claim includes any acquired psychiatric disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). Because the current effective date of July 8, 2014 is earlier than the Veteran’s March 5, 2015 claim for pension based in part on depression, the issue of whether that claim also constituted a claim for service connection is moot. The Board discerns no potential exception to the general effective rules that might apply in this case, such as the receipt of additional relevant service department records and an award of service connection for depression based in whole or in part on such records. See 38 C.F.R. § 3.156(c). The record does not otherwise show that the Veteran filed a formal or informal claim for depression prior to July 8, 2014 that was pending and unadjudicated. See 38 C.F.R. § 3.155(a); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Accordingly, as the record does not show an earlier date of claim for depression that was not subject to a prior final adjudication, an effective date earlier than July 8, 2014 is denied as a matter of law. See 38 C.F.R. § 3.400. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for schizoaffective disorder. The first element for secondary service connection is satisfied. The Veteran has been diagnosed with a schizoaffective disorder, as shown in the July 2015 and October 2019 VA examination reports. The balance of the evidence supports a finding that the Veteran’s schizoaffective disorder has been aggravated by his service-connected stroke. In this regard, a September 2020 opinion authored by a physician in the private sector, M. Shoag, M.D., concludes based on a review of the Veteran’s medical records that his service-connected 2013 cerebral vascular accident (CVA) at least as likely as not aggravated his schizoaffective disorder. In this regard, the physician explained that it is well documented that a cerebrovascular accident causes a variety of neuropsychiatric issues, including but not limited to exacerbation of preexisting mood disorders and new mood disorders. The September 2020 private medical opinion is probative. As there is no evidence to the contrary, and resolving any reasonable doubt in favor of the claim, the Board finds that, pursuant to § 3.303(b), the criteria for service connection for schizoaffective disorder based on aggravation by a service-connected disability have been satisfied. See 38 C.F.R. § 3.102. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, 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.