Citation Nr: 22016297 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-06 252 DATE: March 21, 2022 ORDER Entitlement to an effective date prior to September 11, 2012 for the award of service connection for depressive disorder and anxiety disorder is denied. REMANDED Entitlement to a disability rating in excess of 70 percent for depressive disorder and anxiety disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT On September 11, 2012, the Veteran notified VA that she wanted to file a new claim for depression. There is no evidence of an informal or formal claim or communication regarding intent to file claim received by VA prior to that date. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to September 11, 2012 for the award of service connection for depressive disorder and anxiety disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1986 to October 1990. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2015 rating decision by the Department of Veterans Affair (VA) Regional Office (RO). In a May 2020 decision, the Board denied the claim for an earlier effective date and found that there was no claim on appeal for entitlement to an increased disability rating for depressive disorder, as the Veteran had specifically requested a 70 percent disability rating, which had been granted. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans' Claims (Court). In July 2021, the Court granted the Parties' Joint Motion for Remand (JMR), which vacated the May 2020 Board decision and remanded the matter to the Board. In the JMR, the parties agreed, as did the Court, that the Board had failed in its duty to provide adequate reasons and bases and failed in its duty to assist the Veteran in development of the claims. The Board failed in its duty to provide adequate reasons and bases by not addressing whether the Veteran was entitled to a rating over 70 percent for her psychiatric disorder and entitlement to a TDIU, finding that the Veteran had consistently asked for a rating of 70 percent or higher for her depressive disorder and, in her pleadings, stated she was permanently and totally disabled by her depressive disorder. Concerning the duty to assist, the parties agreed that the Veteran provided a VA Form 21-4142 for a physician who treated her for her mental health condition, but it was unclear whether VA sought the identified records or whether the records could not be obtained. The Board notes that the Parties and the Court agreed that vacatur and remand was required because the Board, among other things, erred in finding that the Veteran's claim for an increased disability rating for depressive disorder and anxiety disorder was not on appeal, instead finding her request for a 70 percent disability rating was fulfilled by the April 2019 rating decision. Accordingly, the grant of a 70 percent disability rating did not constitute a full grant of the benefit sought by the Veteran. AB v. Brown, 6 Vet. App. 35 (1993). As such, the Veteran's claim for an increased disability rating remains on appeal and is before the Board, along with the issue of for an earlier effective date for the award of service connection for depressive disorder and anxiety disorder. The claims now return to the Board. Effective Dates Pertinent Laws and Analysis Except as otherwise provided, the effective date of an evaluation and award of 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; 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. at 57,686. Under the law prior to the amendment, a claim was defined as 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) (2014) (amended 2015). An informal claim was any communication or action indicating an intent to apply for one or more benefits that identifies the benefit sought. 38 C.F.R. § 3.155(a) (2014) (repealed 2015). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims formal and informal for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In addition, in cases involving previously denied claims reports of examination or hospitalization from VA or a uniformed service or private medical records may constitute informal claims to reopen. 38 C.F.R. § 3.157(b). Upon receipt of an informal claim for benefits, if a formal claim for benefits had not been filed, VA is required to provide the Veteran with a formal claim form for the Veteran to complete and return. 38 C.F.R. § 3.155(a) (2014). If a formal claim for benefits was then filed within one year of the date the formal claim form was sent to the Veteran, the formal claim was considered to have been filed as of the date of receipt of the informal claim. Id. Following the March 2015 amendment, a claim for benefits must be filed on the standardized claim form prescribed by the Secretary. 38 C.F.R. §§ 3.150, 3.151 (2017). A veteran may also indicate their intent to file a claim for compensation by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA must provide the claimant with the appropriate claims form. Id. If a complete application for benefits on the form prescribed by the Secretary is received by VA within one year of receipt of the intent to file, VA will consider the formal claim to have been filed as of the date the intent to file a claim was received. Id. An intent to file a claim must be submitted using one of three approved methods and must identify the general benefit and the claimant. Id. To qualify as an informal claim, a document must evince an intent to apply for benefits and identify the benefits sought. See Shea v. Wilke, 926 F.3d 1362, 1367 (Fed. Cir. 2019); Sellers v. Wilkie, 30 Vet. App. 157, 162 (2018); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). To satisfy 38 C.F.R. § 3.157(b)(1), a VA report of examination or hospitalization must identify at least one specific examination by date and indicate that the Veteran's disability has worsened. See Massie v. Shinseki, 25 Vet. App. 123 (2011), aff'd 724 F.3d 1325 (Fed. Cir. 2013); see also Criswell v. Nicholson, 20 Vet. App. 501, 503-04 (2006) (noting that a medical record standing alone does not ordinarily establish intent to apply for benefits). General rules defining informal claims apply to claims for entitlement to disability benefits raised under a theory of secondary causation. See Ellington v. Nicholson, 22 Vet. App. 141, 145-47 (2007). Secondary service connection is granted for a "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). "When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition." 38 C.F.R. § 3.310(a). The "plain meaning of th[is] regulation is and has always been to require VA to afford secondarily service-connected conditions the same treatment (no more or less favorable treatment) as the underlying service-connected conditions for all determinations." Roper v. Nicholson, 20 Vet. App. 173, 181 (2006). Building on Roper, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "a requirement that a secondary condition 'be considered a part of [an] original condition' does not, in our view, establish that the original condition and the secondary condition must receive identical effective dates." Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008). "Indeed, a per se rule requiring identical effective dates for primary and secondary conditions would be illogical, given that secondary conditions may not arise until years after the onset of the original condition." Id. The Federal Circuit concluded that "the effective date for secondary conditions is governed by [38 C.F.R. §] 3.400, which establishes the effective date as the 'date of receipt of claim, or [the] date entitlement arose, whichever is later.'" Id. It explained: We think this result is consistent with 38 U.S.C. § 5110, the statute which governs the effective date of awards. Section 5110(a) provides generally that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." The statute contains no exception to this rule for a claim, such as the one filed in this case, seeking service connection for an alleged secondary condition. Id. at 1370 (emphasis added). The Veteran is seeking an earlier effective date for the award of service connection for her depressive disorder and anxiety disorder. In the November 2015 rating decision, the RO granted service connection for her psychiatric disorder from September 11, 2012, the date VA received her claim. After a review of the record, the Board finds that the earliest effective date allowed is September 11, 2012. On the September 2012 Report of General Information, the Veteran stated that she wanted to "open a new claim" for depression. There is no evidence of any communication received prior to that date indicating an intent to file a claim for service connection for a psychiatric disorder. The Board considered the argument provided by the Veteran's representative that the Veteran made mention of stress related to headaches in 1991, mood swings in 1998, depression in 2007, and anxiety and depression in 2008. See July 2021 Summary of Issues. Even if there was medical evidence that showed the existence of the Veteran's psychiatric disorder prior to September 11, 2012, the evidence does not indicate that the Veteran intended to file the claim prior to this date. See Ellington, 22 Vet. App. at 146 (finding that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefits); Brannon v. West, 12 Vet. App. 32 (1998) (noting that the mere presence of medical evidence does not establish an intent to seek service connection for a psychiatric disorder); see also Brokowski, supra. The scope of the Veteran's claim for service connection for headaches includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). Regardless of whether a claimant identifies a particular disorder upon filing the claim, the scope of the claim is not limited to that condition but is considered a claim for any disability that reasonably may be encompassed by several factors - including his or her description of the claim, the symptoms he or she describes, and the information he or she submits or that VA obtains in support of his claim. See Clemons, supra. Here, however, the Veteran's claim for service connection for headaches did not reasonably encompass any related psychiatric disorder. No reference was made in the initial headaches claim to any secondary psychiatric issue, and no reference was made to any psychiatric symptom. While the representative contends that the Veteran's reports of stress associated with her headaches was sufficient to constitute a claim for service connection for a psychiatric disability, the Board finds the attribution of the headaches to stress was insufficient to constitute a claim for a psychiatric disability, as stress is not a psychiatric diagnosis and is not necessarily a symptom of a psychiatric disorder. Thus, the claim for service connection for headaches and reports of stress associated with such headaches cannot be construed as encompassing a claim for service connection for a psychiatric disability. As the Board finds that the Veteran's initial claim for service connection for headaches did not reasonably encompass any related psychiatric disorder, the effective date for the grant of service connection for a depressive disorder and an anxiety disorder can arise no earlier than the date on which the Veteran applied for benefits for such condition. Thus, contrary to the representative's assertions in the July 2021 summary of issues, the Board finds that the Veteran's November 1991 request for service connection for "headaches-1987" cannot reasonably be construed as a claim for disability benefits for anxiety disorder and depressive disorder, even when sympathetically read. See Shea at 1370 ("language that points to records mentioning... a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition" can satisfy the "identify the benefit sought" requirement of 38 C.F.R. § 3.155(a)). The Board notes that the Veteran's representative contends that the Veteran's March 1998 request for an increased rating for goiter should be sympathetically construed to include a request for compensation for associated mood swings, emotional instability, and nervous, such that an informal claim for service connection for depression and anxiety was raised. In support of this contention, the representative indicates that the Veteran in her December 1998 substantive appeal indicated that her goiter caused pain, suffering, mood swings, nervousness, and emotional instability. However, the Board finds that the December 1998 substantive appeal, even when sympathetically read, cannot reasonably be construed as a claim for disability benefits for a psychiatric disorder. While the Veteran's December 1998 statement could be construed as describing psychiatric symptoms, such descriptions were vague and did not convey an intent to submit a claim for service connection for a psychiatric disorder, particularly since they were made in the context of an increased rating claim for goiter, a non-psychiatric disability. Furthermore, contrary to the Veteran's representative's contentions, the January 1999 statement by the Veteran's then-representative that her "diffuse goiter/thyroid causes tremendous pain, suffering and adversely affects her job and personal life" does not constitute a claim for service connection for a psychiatric disorder, even when sympathetically read. The January 1999 representative's statement is a generalized allegation that the Veteran's goiter, an increased rating for which was on appeal at that time, caused functional impairment, and did not describe any symptoms that could be reasonably construed as a separate claim for service connection for an acquired psychiatric disorder. The Veteran's representative also contends that the Veteran's July 2008 VA treatment record indicating a connection between her depression and service-connected goiter should be construed as an informal claim for an increased rating for goiter and a separate compensable rating for the associated symptoms of depression under 38 C.F.R. § 3.157(b)(1) (2014). However, this evidence cannot be construed as an intent to apply for disability compensation benefits for the symptoms of depression, as VA medical treatment records cannot be accepted as informal claims for disabilities where service connection has not been established. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). See also Pacheco v. Gibson, 27 Vet. App. 21 (2014) (construing ambiguity contained in section 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree). To the extent that the representative is attempting to allege that the July 2008 VA treatment record should be construed as an increased rating claim that encompassed the Veteran's psychiatric symptoms, the Board notes that such theory would inherently result in the grant of service connection for the previously not service-connected psychiatric symptoms, which is contrary to the requirements of 38 C.F.R. § 3.157(b)(1). Finally, the Board finds that the Veteran's February 2008 claim for an increased rating for a sinus condition did not reasonably raise a claim for secondary service connection for depressive disorder and anxiety. The Veteran's representative contends that the notation in the April 2008 VA sinus examination report that the Veteran lost 4 weeks from work during the last 12 months due to "sinusitis, depression/anxiety" is sufficient to constitute an informal claim; however, Board does not agree. This simple statement that the Veteran has missed time from work due to depression does not, even when sympathetically read, indicate that such depression/anxiety was related to or caused by the sinusitis or convey an intent to seek service connection for depression/anxiety. To the contrary, this notation in the service treatment record can be reasonably read as attributing the time lost from work to both the service-connected sinusitis and a non-service-connected psychiatric disorder, without indicating any intent to file a claim or make an etiological connection between the two conditions. While VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by the claimant. The elements for any claim formal or (before March 24, 2015) informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." See Shea, 926 F.3d at 1367. Furthermore, the mere presence of a disability does not establish an intent on the part of a Veteran to seek service connection for that condition. See KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). Thus, for the reasons discussed above, the Board finds that the Veteran did not submit an informal or formal claim for service connection for any acquired psychiatric disorder, including depressive disorder and anxiety disorder, prior to September 11, 2012. To the extent the medical evidence of record reflects diagnoses of acquired psychiatric disorders, to include depressive disorder and anxiety disorder, prior to the Veteran's September 11, 2012 claim, governing law provides that treatment records by themselves do not constitute informal claims when service connection has not yet been established for a condition. 38 C.F.R. §§ 3.157 (2014); see also Sears and Pacheco, supra. Medical records standing alone are not sufficient to constitute an informal claim because such "evidence does not establish an intent on the part of the veteran to seek... service connection." Brannon v. West, 12 Vet. App. at 35. Based on the above, the Board finds that September 11, 2012, the date of the receipt for the Veteran's original claim of entitlement to service connection for depression, is the proper effective date for the grant of service connection for depressive disorder and anxiety disorder. Although the Veteran contends that she is entitled to a grant of service connection for her psychiatric disorder earlier than September 11, 2012, the governing statutory and regulatory criteria prohibit an effective date earlier than the date of receipt of the original claim. Accordingly, the appeal for an earlier effective date for the grant of service connection for depressive disorder and anxiety disorder is denied. REASONS FOR REMAND Private Treatment Records The Board must remand the claim for increased rating for depressive disorder and anxiety disorder for further development in accordance with the July 2021 JMR. Specifically, the JMR found that it was unclear whether the Veteran's private treatment records from Dr. P.A.R., Jr., were requested by the RO. Present in the evidence are an assortment of records from Dr. P.A.R., Jr., which were provided by the Veteran, but it is unclear whether this is the complete set of treatment records. There is also no evidence that the RO requested records from Dr. P.A.R., Jr., after the submission of the medical release form in August 2013. The Board does note that the release provided by the Veteran in August 2013 was only the last page of the VA Form 21-4142. Accordingly, the RO should request an updated and complete VA Form 21-4142 from the Veteran and, upon receipt, take all appropriate efforts to request a complete set of the Veteran's treatment records from Dr. P.A.R., Jr. Ensure that an accurate address for Dr. P.A.R., Jr., is obtained, as the Veteran reported the physician transitioned to concierge medicine in 2017. Entitlement to a TDIU The Veteran specifically raised the issue of unemployability in her February 2019 VA Form 9. As the Veteran has clearly raised the issue of unemployability, the Board has jurisdiction of the derivative TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that additional development is needed to obtain a more detailed description of the Veteran's educational and work history. On remand, the RO should send the requisite VCAA notice and an application for TDIU (VA Form 21-8940) to the Veteran and ask her to complete the form, including her work history and educational background. Consideration of Evidence by the Agency of Original Jurisdiction (AOJ) After the Court's remand to the Board, the Veteran submitted additional evidence in November 2021 accompanied by a Waiver of Opportunity to Submit Additional Evidence or Argument and Additional Evidence Response Form, in which she checked the box requesting remand of the appeal to the AOJ for review of the additional evidence that she submitted in her appeal and waived remaining time to submit additional evidence or argument. Accordingly, the case is remanded to the AOJ for initial consideration of this newly received evidence. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-4142, Authorization and Consent to Release Information to VA, for Dr. P.A.R., Jr., and ask that the form be completed and returned. Associate all records obtained with the claims file. If any identified records are unavailable or cannot be obtained, inform the Veteran, and give her an opportunity to submit such information. 2. Provide the Veteran with notice concerning how to substantiate the claim for TDIU (including asking her to complete a VA Form 21-8940). 3. Then, readjudicate the issues on appeal with consideration of all evidence added to the claims file. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.