Citation Nr: 21026348 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 14-28 821 DATE: April 30, 2021 ORDER Entitlement to an effective date prior to June 20, 2013, for the grant of service connection for anxiety disorder with depression is denied. REMANDED Whether new and material evidence has been received to reopen the claim of entitlement to service connection for right kidney carcinoma is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to an evaluation in excess of 30 percent for anxiety disorder with depression is remanded. Entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran initially filed a initial claim for service connection for anxiety disorder with depression on June 20, 2013. CONCLUSION OF LAW The criteria for an effective date earlier than June 20, 2013, for grant of service connection for anxiety disorder with depression have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.151, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Air Force from July 1985 to November 1989. After this, he became a member of the Army National Guard. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from April 2013 and February 2015 rating decisions by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). This matter was previously before the Board in July 2018, at which time it was remanded for additional development. Records from the Social Security Administration (SSA) were subsequently associated with the Veteran’s record, and a Subsequent Development Letter was sent to the Veteran in August 2019 to identify any outstanding private treatment records. The claim is once again before the Board. Substantial compliance with the Board’s prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In December 2020, the Veteran’s representative raised the contention that the combined effects of his service-connected conditions, to include his anxiety disorder with depression, have rendered the Veteran unemployable. Accordingly, the issue of entitlement to TDIU due to service-connected disabilities has been raised during this appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Accordingly, this issue has been included on the title page. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in May 2, 2014. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. Notably, the Veteran’s increased evaluation and service connection claims ar remanded below for updated VA treatment records and appropriate examinations. However, updated VA treatment records and examinations are not relevant to the Veteran’s claim for an earlier effective date, and the TDIU grant is found warranted despite missing records. As such, VA has satisfied its duty to assist with the procurement of relevant records for the matters that are decided below. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Earlier Effective Date Generally, the effective date for a grant of service connection on an original claim is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The Veteran contends that he is entitled to an effective date prior to June 20, 2013 for the grant of service connection for anxiety disorder with depression. He submitted a request for an earlier effective date in a Notice of Disagreement received May 2015. However, he has not raised any specific allegations as to what date he should have been awarded service connection for this issue. The record reflects that the Veteran submitted his initial claim for service connection on June 20, 2013. There were no prior formal or informal claims of record. Service connection was granted in a February 2015 rating decision, effective June 20, 2013, the date of the claim. The Veteran separated from active duty service in November 1989, but the Board did not receive his claim for service connection for depression and anxiety until June 20, 2013. Since his claim was received more than one year after his separation from service, the effective date is the receipt of the claim, which was June 20, 2013. Accordingly, entitlement to an effective date earlier than June 20, 2013, for service connection for depression and anxiety, is denied. REASONS FOR REMAND The Veteran’s VA treatment records have not been updated since March 2016. As these treatment records may include relevant evidence concerning the Veteran’s service connection claims and increased rating claim, they must be obtained upon remand. 38 C.F.R. § 3.159(c)(2). In January 2017, a private psychologist completed a VA mental disorders examination. Symptoms that had not been identified on the prior January 2015 examination were noted here. November 2016 statements from the Veteran’s sisters also indicate that they had noticed worsening of his symptoms since his prior examination. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. However, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Since the Veteran was most recently examined by the VA in January 2015 and has submitted private medical records and private lay statements indicating potential worsening, an updated examination regarding his psychiatric condition is warranted. The question of entitlement to TDIU is inextricably intertwined with the open questions of service-connection and increased rating, and so adjudication must be deferred. Harris v. Derwinski, 1 Vet. App. 180 (1991) The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records. 2. Schedule the Veteran for a VA mental disorders examination. The examiner must ascertain the current severity and manifestations of the Veteran’s service-connected anxiety disorder with depression. The examiner should specifically comment on the impact of the condition, individually and in combination, on the Veteran’s ability to function in work-related tasks (e.g., sitting, standing, walking, bending, stooping, lifting, cognitive functioning, attendance, cooperation, etc.). 2. Then, readjudicate the remanded issues. If any benefit sought remains denied, issue a supplemental statement of the case, and returned the matter to the Board if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.