Citation Nr: 21012631 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 19-20 476 DATE: March 4, 2021 ORDER Entitlement to an earlier effective date of March 27, 2014 for service-connected compensation for unspecified depressive disorder is granted. FINDINGS OF FACT 1. The AOJ received the Veteran’s claim for service connection for an acquired psychiatric disorder on March 27, 2014. 2. The evidence is at least evenly balanced as to whether the Veteran’s current acquired psychiatric disorder had its initial onset in service or is otherwise related to an in-service disease, injury, or event. CONCLUSION OF LAW The criteria for an earlier effective date of March 27, 2014 for service-connected compensation for unspecified depressive disorder have been met. 38 U.S.C. §§ 1110, 1131, 5107, 5110; 38 C.F.R. §§ 3.102, 3.303, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1968 to February 1988. This case initially reached the Board from a September 2014 decision of the Agency of Original Jurisdiction (AOJ), which denied service-connected compensation for depression. The Veteran appealed that ruling. While the appeal was pending, the AOJ granted service connection for depression as secondary to his service-connected Parkinson’s disease, see 38 C.F.R. § 3.310, with an effective date of March 9, 2017. The Veteran timely appealed the denial of an earlier effective date. In January 2020, the Board decided twenty separate claims for benefits and remanded six others to the AOJ for further development. One of the Board’s rulings was to deny an effective date earlier than March 9, 2017 for the Veteran’s service-connected depressive disorder. After further proceedings before the United States Court of Appeals for Veterans Claims (Court), the parties filed a Joint Motion for Partial Remand (JMR), in which they agreed that the Board erred by failing to adequately explain its reasons for denying an earlier effective date for benefits for depressive disorder. The JMR did not disturb any of the other rulings issued in the January 2020 decision and remand. Nor did it address any of the remanded issues. By granting the JMR in October 2020, the Court vacated the denial of an earlier effective date for depressive disorder and returned that issue to the Board. In his most recent written brief, the Veteran’s attorney asks the Board, in addition to granting an earlier effective date for unspecified depressive disorder, to grant a total disability rating based on individual unemployability due to service-connected disorders (TDIU). Unfortunately, the procedural posture of this appeal does not permit the Board to address TDIU at this time. The earlier effective date issue is the only question which the Court remanded to the Board after granting the parties’ JMR. In May 2020, the Board remanded the issue of TDIU to the AOJ for further development, along with five increased rating claims. Although the Veteran withdrew his appeal of some of his increased rating claims in March 2020, the TDIU claim remains before the AOJ and could potentially be affected by the outcome of pending increased rating claims for service-connected knee disabilities, which the Veteran filed in October 2020. If the AOJ does not resolve the TDIU claim to his satisfaction, then the Board will review that claim after the issuance of a Supplemental Statement of the Case. Earlier Effective Date for Unspecified Depressive Disorder Generally, 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 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. Under this rule, for most claims, the effective date assigned after a successful claim for benefits is the date the AOJ receives the initial claim. But it is sometimes possible for “the date entitlement arose” to come after the date of receipt of the claim. “For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested.” DeLisio v. Shinseki, 25 Vet. App. 45, 52 (2011). It is undisputed that the AOJ received the Veteran’s initial claim seeking service-connected compensation for depression on March 27, 2014. In its vacated January 2020 decision, the Board acknowledged this claim, but decided that, because the Veteran’s depression claim was granted as a secondary result of his service-connected Parkinson’s disease pursuant to 38 C.F.R. § 3.310, the effective date could be no earlier than March 9, 2017, the effective date assigned for Parkinson’s disease. In their JMR, the parties agreed that the Board’s analysis was incomplete without ruling on the Veteran’s March 2014 claim, which the AOJ denied in September 2014, and which the Veteran appealed to the Board. The JMR observed that, in November 2017, the Veteran’s attorney submitted arguments suggesting that, alternatively, he was eligible for service connection for depressive disorder both on a direct basis – i.e., that his depression had its initial onset in service and/or was related to stressful events in service – and as the secondary result of his service-connected Parkinson’s disease. In other words, by granting the JMR, the Court decided that the request for an earlier effective date depends on the resolution of the Veteran’s direct service connection claim for depression. If his depression had its onset in service or at some point between service and March 2014, then “the date entitlement [to service connection] arose” came before the AOJ received the March 2014 claim and, accordingly, the Veteran has been entitled to benefits since then. 38 C.F.R. § 3.400. If, however, the Veteran only developed his current psychiatric disorder as a result of his Parkinson’s disease, then the appropriate date cannot be earlier than the effective date of his compensation for Parkinson’s disease. To decide whether the Veteran is eligible for service connection for his depression on a direct basis, the Board must consider whether the evidence satisfies three requirements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and an in-service precipitating disease, injury or event. See Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). An April 2017 VA mental disorders examination report indicates a diagnosis of unspecified depressive disorder. In June 2016, a psychologist in private practice prepared an examination questionnaire reflecting the same diagnosis. This evidence satisfies the current disability requirement of the claim. The Veteran’s service records do not indicate a clinical diagnosis for any psychiatric disorder. But his personnel records document his combat service in Vietnam and receipt of the combat infantryman badge, among other decorations. During the last few years of his active duty service, the progress notes refer to “lots of tension” and “stress” though without a diagnosis. In a written statement, the Veteran attributes his psychiatric symptoms to his experience in Vietnam. After experience the stress, fear, and difficulty conditions of combat, he indicated that he began to experience nightmares and feelings of depression and anxiety. According to the Veteran, his Parkinson’s disease made his depression worse, but did not cause his depression. In April 2016, the Veteran’s sister provided her own statement. She wrote that she knew the Veteran before he joined the Army and noticed changes in his mood and personality when he came home. In addition to the examination questionnaire, the private psychologist who examined the Veteran in June 2016 prepared a written opinion. This report described symptoms associated with his depressive disorder, including chronic sleep impairment, irritability, concentration problems, and also “visual hallucinations consisting of seeing blood splatters or red stars in a splatter pattern on the walls; this has been consistent since Vietnam tours.” In the psychologist’s opinion, the Veteran’s unspecified depressive disorder “more likely than not began in military service, continues uninterrupted to the present and is aggravated by [service-connected disorders of the back, knees, hands, and hypertension].” The VA examiner who provided a favorable opinion concerning a relationship between the depression and Parkinson’s disease wrote that, “The Veteran did not have a depressive disorder until he was recently diagnosed with Parkinson's disease in March of 2017.” But the VA examiner’s opinion did not address the Veteran’s statement about the origins of his symptoms or the statement from his sister about changes in his personality or the contrary opinion of the June 2016 private psychologist. Under these circumstances, the April 2017 VA examiner’s opinion is not adequate to justify a decision denying an earlier effective date. There is a duty to avoid development which can have no purpose other than to obtain evidence against the Veteran. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). And there is also evidence of meaningful probative in favor of a relationship between current psychiatric symptoms and service. Under these circumstances, the Board finds that the evidence is at least evenly balanced as to whether the Veteran’s unspecified depressive disorder is directly related to active duty service. By law, the doubt resulting from this equipoise in the evidence is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only ‘an approximate balance of positive and negative evidence’... , the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). Accordingly, the Board will   move forward the effective date previously assigned to the Veteran’s service-connected psychiatric disorder to March 27, 2014. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.