Citation Nr: 21039814 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-12 204 DATE: July 1, 2021 ORDER Entitlement to an earlier effective date prior to October 19, 2007 for a grant of service connection for a major depressive disorder is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for a major depressive disorder is remanded. FINDING OF FACT 1. The Veteran's claim for service connection for post-traumatic stress disorder (PTSD) and a bi-polar disorder was received on October 27, 2001 and was denied in a May 2002 rating decision; the Veteran did not timely file a notice of disagreement within a year and that rating decision became final. 2. On October 19, 2007, VA received correspondence from the Veteran's service organization and the Veteran's statement in Support of Claim form indicating a request to reopen a claim for service connection for PTSD and depression. CONCLUSION OF LAW The criteria for an effective date prior to October 17, 2007 for a grant of service connection for a major depressive disorder have not been met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1981 to January 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. As an initial matter, VA treatment records relevant to her increased rating claim for a major depressive disorder were submitted after the January 2021 Board hearing. Generally, when VA documents are submitted after the last issuance of a statement of the case or supplemental statement of the case, a waiver of review by the agency of original jurisdiction (AOJ) is required. However, as the Board is remanding the Veteran's increased rating claim for a major depressive disorder, the lack of AOJ consideration in the first instance is harmless error and is not prejudicial as the evidence will be considered in a subsequent supplemental statement of the case (SSOC). 1. Entitlement to an earlier effective date prior to October 19, 2007 for a grant of service connection for a major depressive disorder is denied. The Veteran seeks an earlier effective date for a grant of service connection for a major depressive disorder. Specifically, she asserts she is entitled to an October 27, 2000 effective date which is the date that she initially filed a claim for PTSD and bi-polar disorder. Generally, the effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it 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). If a previously denied claim is later reopened and granted based on the submission of new and material evidence, the effective date of benefits will ordinarily be the date that the claimant filed the application to reopen or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(2). The essential elements for any claim, whether formal or informal, are: (1) An intent to apply for benefits; (2) An identification of the benefits sought; and (3) A communication in writing. 38 C.F.R. § 3.1 (p); see Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). VA amended its regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought. 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 after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413 (1999). Although this regulation is no longer extant, because it was in effect during the pendency of this appeal, it is applicable to the present case. Upon review of the claims file, the Board finds that the Veteran is not entitled to an earlier effective date prior to October 19, 2007 for a grant of service connection for a major depressive disorder. Here, the Veteran separated from service in January 1984 and did not file a claim within a year following separation from service. A review of the evidence shows that she submitted a third-party correspondence through her veteran's service organization (VSO) on October 27, 2000 indicating her intent to seek service connection for PTSD due to military sexual harassment and a bi-polar disorder. In a May 2002 rating decision, the RO denied service connection for PTSD and a bi-polar disorder. The Veteran did not file a notice of disagreement within a year of that rating decision and it became final. On October 19, 2007, VA received a Statement in Support of Claim and correspondence from the Veteran and her representative indicating a request to reopen the previously denied claim of PTSD. She also filed a claim for service connection for a depression disorder. In a June 2008 rating decision, her claims for service connection for PTSD and a depressive disorder were denied and she submitted an informal notice of disagreement indicating her disagreement with the June 2008 rating decision. As the informal notice of disagreement was filed prior to the change in regulation governing the use of formal VA forms on March 24, 2015, VA accepted the Veteran's informal notice of disagreement. Ultimately, in an April 2014 decision, the Board denied service connection for PTSD and granted service connection for a depressive disorder. Subsequently, in an April 2014 rating decision, the RO notified the Veteran of the grant of service connection for a depressive disorder and assigned an effective date of October 19, 2007, the date her claim to reopen was received. Based on the foregoing, the Board finds that the effective date of October 19, 2007 is proper because it is based on the date of her request to reopen a previously denied claim for service connection for sexual harassment and a bi-polar disorder. 38 C.F.R. § 3.400 (r) (with respect to claims to reopen, the effective date for an award of benefits will be the date of the new claim or the date entitlement arose, whichever is later). There is no evidence submitted prior to October 19, 2007 that can be construed as an informal claim or formal claim. The Board acknowledge the Veteran's belief that she is entitled to an earlier effective date of October 27, 2000, the date she originally filed a claim for her psychiatric disorders. However, as no notice of disagreement was filed within a year from the May 2002 rating decision, that rating decision became final and she is precluded from receiving an earlier effective date of October 27, 2000. Considering the above-cited legal authority and evidence, the Board finds that the preponderance of the evidence is against a finding that the Veteran is entitled to an earlier effective date prior to October 17, 2007 for her service-connected major depressive disorder. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine but finds that is not applicable in the instant appeal. As such, her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 30 percent for a major depressive disorder is remanded. Upon review of the record, the Board finds that a remand is warranted before the Board can adjudicate the claim. First, the Board finds the matter must be remanded to obtain outstanding private and VA treatment records. During the January 2021 Board hearing, the Veteran testified she recently moved to Monterey, California but was treated by different providers in San Diego who may have treatment records to support her increase rating claim. She further testified she went through the VA in San Diego and saw someone regularly in 2016 and also have records at Fleet Family Support. In an April 2021 VA treatment record, she reported being treated by non-VA providers who she indicated as Dr. M. S. and Dr. R. A review of the Veteran's claims file reflects some VA treatment records from a San Diego VA medical center; however, these medical treatment records only consist of treatment records from October 2000 to March 2015. Based on the Veteran's testimony and review of the available medical treatment records, the evidence suggests there are outstanding VA and private treatment records. As such, a remand is necessary to obtain the Veteran's current VA and private treatment records. Moreover, the Board notes that the Veteran's last VA examination was in March 2015. Since that VA examination, the Veteran testified at a January 2021 Board hearing that she has experienced an increase in her depression and anxiety disorders. She further states she experiences anxiety, panic attacks, sleeping problems, and eating disorders. Specifically, she testified that she had a panic attack several years ago which required her husband taking her to a hospital for treatment. She also submitted VA treatment records from the Santa Cruz County Vet Center in April 2021 indicating that she had suicidal ideation in 2018. Additionally, she also endorses having symptoms such as hypervigilance, arousal, intrusive distressing thoughts and memories, guilt, negative emotional state, impaired sleep, and avoidance. Based on the Veteran's lay statements and the April 2021 VA medical treatment records, it appears that her service-connected major depressive disorder may have worsened since the March 2015 VA examination. As such, a remand is required to obtain a VA examination to determine the current severity of her major depressive disorder. Based on the foregoing reasons, a remand is warranted to obtain current VA and private treatment records and to provide the Veteran with a VA examination to determine the current severity of her major depressive disorder. The matters are REMANDED for the following action: 1. Contact the Veteran to obtain the necessary information to obtain any outstanding VA and private treatment records related to the Veteran's service-connected major depressive disorder and associate them with the claims file, to include treatment records from a San Diego VA medical center, Fleet Family Support, and Dr. M. S. and D. R. 2. Schedule the Veteran for a VA examination to determine the current severity of her major depressive disorder. 3. After, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran with a supplemental statement of the case (SSOC) and provide him with an appropriate opportunity to respond. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.