Citation Nr: 21030219 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-12 488 DATE: May 18, 2021 ORDER Entitlement to an effective date prior to August 18, 2009 for service connection for major depressive disorder is dismissed. Entitlement to an effective date of August 18, 2009, but no earlier, for service connection for PTSD is granted. FINDINGS OF FACT 1. In the absence of a timely appeal of the January 2011 rating decision with respect to the assigned effective date of service connection for major depressive disorder, that decision is final; an effective date prior to August 18, 2009 is not assignable. 2. The Veteran submitted a request to reopen a claim for service connection for PTSD on August 18, 2009. 3. In January 2011, the agency of original jurisdiction denied the request to reopen a claim for service connection for PTSD. 4. The Veteran submitted new and material evidence regarding service connection for PTSD within one year of the January 2011 rating decision, therefore the August 18, 2009 claim remained open. 5. In May 2013, the agency of original jurisdiction incorporated PTSD into the Veteran's mental health disability rating; this represented a grant of service connection for PTSD on the open claim filed August 18, 2009. 6. There were no pending claims of entitlement to service connection for PTSD at the time of the August 18, 2009 claim. CONCLUSIONS OF LAW 1. An effective date prior to August 18, 2009 for the grant of service connection for major depressive disorder is dismissed. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.400, 20.302, 20.1103; Rudd v. Nicholson, 20 Vet. App. 296 (2006). 2. The criteria for entitlement to an effective date of August 18, 2009, but no earlier, for service connection for PTSD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156(b), 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1977 to May 1994. This case comes on appeal of an October 2014 rating decision. The Board notes that the Veteran initially requested to testify before the Board in a Central Office hearing. However, due to the ongoing global pandemic, the Veteran agreed to testify in a virtual tele-hearing instead, and did so in March 2021. A transcript has been associated with the claims file. Earlier Effective Dates The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection "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). The implementing regulation clarifies this to mean that the effective date of an award of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400. In the case of a reopened claim, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). If, however, prior to the expiration of the appeal period of a pending claim, a claimant submits new and material evidence, such evidence will be considered as having been filed in connection with the pending claim. 38 C.F.R. § 3.156(b). In such a case, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q). As a matter of background, the Veteran first submitted a written communication in December 2002 requesting service-connected compensation for PTSD. As of a December 2003 Board decision, the agency of original jurisdiction had not responded to this communication. Therefore, in that December 2003 Board decision, the Board referred the claim of service connection for PTSD to the AOJ. In February 2004, the AOJ sent the Veteran a development letter to obtain more information on the Veteran's PTSD claim and the Veteran responded. In June 2004, the AOJ issued a rating decision denying the claim for service connection for PTSD. In the rating decision, the AOJ reported that the Veteran did not demonstrate a diagnosis of PTSD, but rather had a diagnosis of depression that was unrelated to military service. Following the June 2004 rating decision, the Veteran did not submit a notice of disagreement, nor was new and material evidence received within one year. During that time, the Veteran submitted a new claim for service connection and increased ratings related to musculoskeletal disabilities. However, there were no communications regarding a psychiatric disability. Therefore, the June 2004 rating decision became final. The Veteran then submitted a request to reopen his previously-denied claim for service connection for PTSD in August 2007. In October 2007, the Veteran submitted a correspondence that he described as "information submitted to support disagreement and appeal of claim for service-connected post-traumatic stress disorder." Then, in June 2008, the AOJ sent the Veteran a development letter requesting more information regarding his PTSD claim. In July 2008, the Veteran's representative submitted correspondence noting that the Veteran was requesting an informal hearing with a decision review officer to discuss his "pending appeal of PTSD." Notably, at that time, the AOJ had not issued a rating decision on the Veteran's initial claim; therefore, there was no appeal pending at that time. In October 2008, the AOJ issued a rating decision in which it determined that the Veteran had not submitted new and material evidence regarding his PTSD claim and the claim was therefore not reopened. Within the one-year period following the October 2008 rating decision, the Veteran did not submit a notice of disagreement. In August 2009, the Veteran submitted correspondence requesting to reopen his claim of service connection for PTSD "under the new regulation change for traumatic incidents due to military service." Notably, this was a new claim and did not represent a notice of disagreement with the previous decision. At the same time, the Veteran also submitted a new claim for service connection for major depressive disorder and anxiety disorder. In November 2009, the Veteran's representative then submitted another claim for service connection for PTSD. However, between October 2008 and October 2009, the Veteran did not submit, nor did VA receive, any new evidence regarding PTSD. Therefore, the October 2008 rating decision became final. In January 2011, the AOJ issued a rating decision granting the Veteran's claim for service connection for major depressive disorder, as secondary to other service-connected disabilities. The AOJ made the grant of service connection effective the date of the Veteran's August 2009 claim. In the same decision, the AOJ denied the Veteran's request to reopen his claim for service connection for PTSD, determining that the Veteran had not provided new and material evidence. In March 2011, the Veteran submitted a number of lay statements regarding the traumatic event that he alleged was the stressor behind his PTSD. The Veteran also submitted medical information documenting a PTSD diagnosis. In May 2011, the Veteran then submitted a claim to reopen his claim for service connection for PTSD. In May 2013, the AOJ issued a rating decision granting entitlement to an increased rating for PTSD, to include major depressive disorder, effective the date of the Veteran's May 2011 claim. In that rating decision, the AOJ determined that the evidence of a service-connected PTSD diagnosis weighed in the Veteran's favor. However, according to the AOJ, given that the Veteran was already service connected for major depressive disorder, a separate grant of service connection for PTSD was not warranted as that would constitute pyramiding. Instead, the AOJ incorporated the additional symptomatology of the Veteran's PTSD into the overall rating for his mental health disability and determined that an increased rating was warranted as of May 2011. In October 2013, the Veteran then submitted a claim for an increase to a 70 percent rating for PTSD due to worsening symptoms. The Veteran stated that he was seeking retroactive benefits and entitlements dating back to 2002 when he was diagnosed with PTSD by a VA psychiatrist. In January 2014, the AOJ issued a rating decision granting entitlement to a rating of 70 percent for an acquired psychiatric disorder, effective July 28, 2011. In issuing the decision, the AOJ determined that a phone contact from the Veteran on that date represented a claim for increase. The AOJ did not address the Veteran's contention that he was entitled to benefits dating to 2002. Then, in March 2014, the Veteran specifically filed a claim for entitlement to an earlier effective date for PTSD and depressive disorder requesting that it be granted to the original date of the claim on "June 30, 2003." Here, the Board observes that the AOJ's determination that separate service connection for PTSD in addition to major depressive disorder constitutes pyramiding is not entirely accurate. The AOJ was correct in that it constitutes impermissible pyramiding for VA to grant multiple disability ratings based on two disabilities manifesting in the same symptoms. 38 C.F.R. § 4.14. However, it is not necessarily the case that two mental disabilities inherently have overlapping symptomatology. See Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). Indeed, separate service connection is available in cases where there are distinct and separate symptoms, diagnoses, and causes. Id. at 1381. In this case, the AOJ identified that major depressive disorder and PTSD are distinct disabilities with distinct causes. In granting service connection for major depressive disorder, the AOJ did so on a theory of secondary causation, determining that the disability was caused by the Veteran's service-connected physical disabilities. In incorporating PTSD into the Veteran's mental health disability rating, the AOJ acknowledged that PTSD was linked to credible in-service stressors that were consistent with the nature of the Veteran's military duties. Accordingly, the Board must consider the May 2013 rating decision to have granted separate service connection for PTSD. By making such a distinction, this means that the Veteran has effectively brought forth two separate earlier effective date claims: the first is for an earlier effective date for service connection for major depressive disorder, and the second is for an earlier effective date for service connection for PTSD. 1. Entitlement to an earlier effective date for service connection for major depressive disorder If service connection is established for a particular disability, and the veteran is assigned an effective date for the award, he or she has the right to appeal the effective date. See, e.g., 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If he or she does not initiate an appeal of the effective date within one year, however, the AOJ's decision with respect to the effective date becomes final, and no subsequent "free-standing" claim for an earlier effective date may be entertained. See 38 C.F.R. §§ 20.302(a), 20.1103; Rudd v. Nicholson, 20 Vet. App. 296 (2006). Based on the timeline explained above, the Veteran filed a claim for service connection for major depressive disorder in August 2009. The AOJ granted the claim in January 2011, effective the date of the August 2009 claim. The Veteran did not file a notice of disagreement appealing the effective date of that award within one year of the January 2011 rating decision. Therefore, the effective date of the award became final. The Veteran filed a claim of entitlement to an earlier effective date for service connection for major depressive disorder in March 2014. This constitutes a free-standing claim for an earlier effective date for the award of service connection. Accordingly, such a claim lacks legal merit and is dismissed. Even if the Board were to liberally construe the Veteran's October 2013 statement that he was seeking retroactive benefits for PTSD as an appeal for an earlier effective date for major depressive disorder, that submission also falls well after the one-year period for an appeal of the January 2011 rating decision. The Board notes that if the Veteran wishes to challenge the effective date of service connection for major depressive disorder, he must file a claim based on clear and unmistakable error (CUE) in a prior rating decision. 2. Entitlement to an earlier effective date for service connection for PTSD To clarify the procedural history given above, the Veteran filed a request to reopen a claim of service connection for PTSD in August 2009. In a January 2011 rating decision, the AOJ denied the Veteran's request to reopen. The Veteran then submitted a number of documents constituting new and material evidenceto include medical evidence and lay statementswithin one year of the January 2011 rating decision. Under 38 C.F.R. § 3.156(b), this negated the finality of the January 2011 rating decision and continued the August 2009 claim. As discussed above, when the AOJ incorporated PTSD into the Veteran's major depressive disorder rating in May 2013, this should have been considered a separate grant of service connection for PTSD. Thus, when the Veteran submitted a request in October 2013 for both an increased rating for PTSD as well as retroactive benefits, this could reasonably be interpreted as a disagreement appealing the effective date of service connection for PTSD. Therefore, specifically for the effective date for PTSD, the Veteran submitted a timely disagreement with the May 2013 rating decision and the Board has jurisdiction to consider an earlier effective date. Here, considering that the Veteran submitted new and material evidence within one year of the January 2011 rating decision, the date of the Veteran's claim for service connection for PTSD should be considered August 18, 2009. Given that the new and material evidence ultimately served as the basis of a grant of service connection for PTSD, the effective date for service connection should be established as of the date of the claim. In other words, service connection for PTSD should be made effective as of August 18, 2009. There is no basis for an earlier effective date of service connection for PTSD prior to August 18, 2009. Indeed, the Veteran did not submit a notice of disagreement within one year of the June 2004 rating decision, nor was new and material evidence received within one year. Therefore, that decision became final. Likewise, the Veteran did not submit a notice of disagreement, nor did VA receive new and material evidence within one year of the October 2008 rating decision. Therefore, that decision became final as well. In the absence of a reason to negate the finality of a previous decision, the rule concerning the effective date of a reopened claim is the controlling regulation. 38 C.F.R. § 3.400(r). That rule clearly states that in the case of a reopened claim, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Here, the Veteran's request to reopen the claim for service connection for PTSD was received on August 18, 2009. Therefore, there is no basis to award an effective date for service connection for PTSD prior to that date. In sum, insofar as VA has not recognized August 18, 2009 as the effective date for the award of service connection for PTSD, such recognition is granted in this decision. The assignment of an earlier effective date for the award must be denied. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.