Citation Nr: 21040031 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 13-16 337 DATE: July 2, 2021 ORDER 1. To the extent that it denied the Veteran an effective date prior to December 4, 2015, for the award of service connection for major depressive disorder (MDD) with anxious distress, the February 28, 2020 Board decision is vacated. 2. An [earlier] effective date of May 10, 2012, is granted for the award of service connection for MDD with anxious distress, subject to the regulations governing payment of monetary awards. FINDINGS OF FACT 1. On February 28, 2020, the Board issued a decision denying (in part) entitlement to an effective date prior to December 4, 2015 for the award of service connection for MDD with anxious distress. 2. Subsequently, an informal claim for a psychiatric disability that was received by VA on May 10, 2012 (but was not then entered in the record and was not addressed/considered in the Board's decision) was associated with the Veteran's claims file. 3. The first communication from the Veteran expressing intent to file a claim of service connection for a psychiatric disability (initially claimed as depression) was received by VA on May 10, 2012. CONCLUSIONS OF LAW 1. A vacate of the Board's February 28, 2020 decision, to the extent that it denied entitlement to an effective date prior to December 4, 2015, for the award of service connection for MDD with anxious distress (based on an incomplete record), is warranted. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 2. An earlier effective date of May 10, 2012 for the award of service connection for MDD with anxious distress is warranted. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1981 to October 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision (which, inter alia, denied service connection for depression). In March 2018, the Board remanded the matter of service connection for a psychiatric disability for additional development. A May 2018 rating decision granted service connection for MDD with anxious distress, rated 70 percent, effective December 4, 2015. The Veteran perfected an appeal of the assigned rating and effective date of service connection to the Board. A February 28, 2020 Board decision, inter alia, denied an effective date prior to December 4, 2015, for the award of service connection for MDD with anxious distress (and remanded the matter of entitlement to a rating in excess of 70 percent for such disability for additional development). [A March 2021 Board decision, in relevant part, denied a rating in excess of 70 percent for such disability.] 1. Vacatur Order The Board of Veterans' Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. A February 28, 2020 Board decision, in part, denied entitlement to an effective date prior to December 4, 2015, for the award of service connection for MDD with anxious distress, on the basis that VA had not received a communication from the Veteran expressing intent to file a claim of service connection for a psychiatric disability prior to December 4, 2015. In May 2021, the Veteran's attorney submitted a Motion to Reconsider the February 28, 2020 Board decision, to the extent it denied an earlier effective date for the award of service connection for MDD with anxious distress, contending that the effective date should be May 10, 2012. In support of his claim, he submitted a copy of a May 10, 2012 facsimile from the Veteran addressed to a VA building (in Minnesota), requesting that such be considered "an informal claim for compensation benefits for depression." The electronic details for the May 10, 2012 received facsimile document show that it was received by VA on that date, but inexplicably was not associated (with the Veteran's electronic claims file record until May 2020 (i.e., approximately three months after the Board's February 2020 decision), resulting in the Board's decision being based on an incomplete record. Therefore, due process was not accorded to the Veteran in the February 28, 2020 Board decision. See 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000(a). Consequently, acknowledging the Motion to Reconsider filed by the Veteran's attorney in May 2021, the Board has decided to vacate the decision in part, to the extent that it denied effective date prior to December 4, 2015, for the award of service connection for MDD with anxious distress. [The matter of entitlement to an effective date prior to December 4, 2015, for the award of service connection for MDD with anxious distress, on de novo review, is addressed below.] 2. An [earlier] effective date of May 10, 2012 is granted for the award of service connection for MDD with anxious distress. Legal Criteria, Factual Background, and Analysis The Veteran seeks an earlier effective date, specifically May 10, 2012, for the award of service connection for MDD with anxious distress. See May 2021 Motion for Reconsideration. Except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later (emphasis added). 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The critical question in this matter is when the Veteran first filed a claim seeking service connection for a psychiatric disability (as the effective date of an award of service connection cannot be earlier than the date of receipt of the claim, unless the claim was filed within one year following separation from service, in which case the award of service connection may be retroactive to the day following the date of separation from service). The first communication from the Veteran to VA seeking service connection for a psychiatric disability was an informal claim received on May 10, 2012, which states, "Please consider this correspondence an informal claim for compensation benefits for depression." [As described above, the document was not associated with the Veteran's electronic claim file until May 2020, three months after the Board's February 2020 original denial in this matter.] VA did not solicit a formal claim from the Veteran, or process this informal claim, until December 2015. [Notably, the Veteran's May 10, 2012 informal claim was filed prior to March 24, 2015, when VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form.] Neither the Veteran nor his attorney have argued for an effective date prior to May 10, 2012, and he is not shown to have filed a formal or informal application for service connection for a psychiatric disability prior to May 10, 2012. Given the circumstances of this case, the Board finds that an earlier effective date of May 10, 2012, but no earlier, is warranted for the award of service connection for MDD with anxious distress. [The assignment of an initial rating for MDD with anxious distress (for the period from May 10, 2012 to December 4, 2015) is a downstream issue for the Agency of Original Jurisdiction to address in the first instance.] [SIGNATURE ON NEXT PAGE] GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.