Citation Nr: 22018694 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-59 800 DATE: March 30, 2022 ISSUES Entitlement to an effective date of November 25, 1996 for the grant of an increased rating for a left shoulder disability. Entitlement to an initial disability rating in excess of 30 percent for the Veteran's psychiatric disability for the period from June 30, 1981 to December 27, 2011. REMANDED Entitlement to an effective date of November 25, 1996 for the grant of an increased rating for a left shoulder disability is remanded. Entitlement to an initial disability rating in excess of 30 percent for the Veteran's psychiatric disability for the period from June 30, 1981 to December 27, 2011 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1974 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in a video Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2020. A transcript of that hearing is of record. On June 21, 2021, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Memorandum Decision that vacated the Board's May 2020 decision and remanded the issues of entitlement to an effective date of November 25, 1996 for the grant of an increased rating for a left shoulder disability and entitlement to an earlier effective date for the initial assignment of a 30 percent rating for the Veteran's psychiatric disability back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court's remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated September 23, 2021 notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran's representative submitted an updated attorney brief on December 27, 2021. See Clark v. O'Rourke, 30 Vet. App. 92 (2018). The substance of the Court's Memorandum Decision will be discussed further in the remand section below. In essence, this remand incorporates the findings of the Court in it's June 2021 Memorandum Decision. As it relates to the psychiatric disability, when this matter was before the Board in May 2020 the issue was originally recorded as entitlement to an earlier effective date for the initial assignment of a 30 percent rating for the Veteran's psychiatric disability. Because the Veteran was originally granted service connection with a 30 percent disability rating effective June 30, 1981, the day following his separation from active service, no earlier date for the initial assignment of the 30 percent rating is possible. Thus, the Board construes the claim of the Veteran to be a claim for entitlement to an initial disability rating in excess of 30 percent for the Veteran's psychiatric disability for the period from June 30, 1981 to December 27, 2011, the date his disability rating was increased to 50 percent. As such, the claim has been reworded as noted above. See 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). The Board notes that the issue of an increased disability rating in excess of the 50 percent for the psychiatric disability for the period from December 27, 2011 forward was most recently remanded by the Board in April 2021, and will be adjudicated in a separate decision. 1. Entitlement to an effective date of November 25, 1996 for the grant of an increased rating for a left shoulder disability is remanded. The Veteran was originally granted service connection for his left shoulder disability in a July 1982 rating decision, with a 0 percent rating assigned effective, June 30, 1981, the day following his separation from active service. On November 25, 1996 VA received a claim for an increased rating for his left shoulder disability on a VA Form 21-4138. In a March 1997 correspondence, the RO notified the Veteran that he did not sign his VA Form 21-4138 and informed him that his claim could not be accepted until he signed the form. The Veteran did not respond to the letter and did not return a signed VA Form 21-4138 and therefore, the RO did not process his increased rating claim. The Veteran filed another claim for an increased rating for his left shoulder disability in June 2004. The Veteran however contends that he is entitled to the effective date of November 25, 1996 for the increased rating for his shoulder disability. On June 21, 2021, CAVC issued a Memorandum Decision which vacated the portion of the May 2020 Board decision that denied entitlement to an effective date of November 25, 1996 for the grant of an increased rating for a left shoulder disability, and remanded that issue to the Board for further consideration and development. No. 20-4017, 2021 U.S. App. Vet. Claims (June 21, 2021) (unpublished). In the June 2021 Memorandum Decision, the CAVC noted that while the Board had not made any clear findings on the matter for the Court to reverse, the record contains a previous claim for the Veteran's left shoulder disability. The CAVC discussion noted the Veteran's argument that the Board in its May 2020 decision should have considered the Court's holding in Thomas v. Principi, 16 Vet. App. 197 (2002) and whether 38 C.F.R. § 3.155 (c) applied to the Veteran's November 1996 informal claim for an increased rating. Given the Court's finding that the Veteran had previously submitted a claim for his left shoulder disability, the May 2020 Board decision that denied the Veteran's claim for an effective date of November 25, 1996 for the grant of an increased rating for a left shoulder disability was vacated and remanded back to the Board for reconsideration. The Board recognizes that a "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p); see also Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155 (a). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello, supra. In consideration of the above, including the finding of the Court that the Veteran filed a previous claim for an increased rating for his left shoulder disability, the Board finds that the submission of the November 25, 1996 VA Form 21-4138 constituted the date of receipt of his claim for an increased rating. In light of this determination, the Board finds that the medical evidence of record at this time is insufficient for the Board to determine whether the increased rating for the Veteran's left shoulder disability is warranted as of November 25, 1996. Therefore, a remand is necessary for further development, to determine the proper effective date of the increased rating for the left shoulder disability. 2. Entitlement to an initial disability rating in excess of 30 percent for the Veteran's psychiatric disability for the period from June 30, 1981 to December 27, 2011 is remanded. The Veteran filed a claim for service connection for his psychiatric disability on April 1, 1982. In an April 24, 1984 rating decision, the Veteran was afforded service connection for his psychiatric disability, with a 30 percent rating assigned effective June 30, 1981. On October 1, 1984 the Veteran submitted new VA hospitalization records from June 22, 1984, to July 12, 1984, in relation to his psychiatric condition. On November 26, 1984 the AOJ issued a rating decision which granted a temporary 100 percent rating from June 22, 1984 and then back to a 30 percent rating from September 1, 1984, pursuant to 38 C.F.R. § 4.29. It is the Veteran's contention, in part, that the submission of the VA hospitalization records abated the finality of the April 1984 rating decision, pursuant to 38 C.F.R. § 3.156(b). In the June 21, 2021 CAVC Memorandum Decision the Court vacated the portion of the May 2020 Board decision that dismissed the Veteran's claim for an earlier effective date for the assignment of a 30 percent rating for the Veteran's psychiatric disability, and remanded that issue to the Board for further consideration and development. No. 20-4017, 2021 U.S. App. Vet. Claims (June 21, 2021) (unpublished). The CAVC determined that the November 1984 rating decision which adjudicated the Veterans psychiatric disorder claim pursuant to 38 C.F.R. § 4.29 did not respond to the Veteran's submission of his new hospital records. As such the CAVC determined that the Board must consider and discuss 38 C.F.R. § 3.156(b) in relation to whether the treatment records which were submitted within the one year appeal period of the April 1984 rating decision constituted new and material evidence which related to the Veteran's original April 1, 1982 claim. As such the May 2020 Board decision that dismissed the Veteran's claim for an earlier effective date for an increased rating for a psychiatric disability was vacated and remanded back to the Board. In light of the findings in June 2021 CAVC memorandum decision, the Boards finds that the medical treatment records submitted by the Veteran in October 1984 did constitute new and material evidence pertinent to his original April 1, 1982 claim for entitlement to service connection for a psychiatric disability. Therefore, the Board finds that the submission of this evidence abated the finality of the April 24, 1984 rating decision granting service connection for a psychiatric disability, with a 30 percent rating assigned effective June 30, 1981. See 38 C.F.R. § 3.156 (b). As such, the Board finds that a re-adjudication of the Veteran's original claim is warranted pursuant to C.F.R. § 3.156 (b). Accordingly, the Board finds that this matter must be remanded in order for the AOJ to readjudicate the Veteran's April 1982 claim. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran 2. Complete any and all development necessary to properly adjudicate the Veteran's claim for an earlier effective date for an increased rating for his left shoulder disability, from his date of claim for the increased rating, November 25, 1996. Should it be determined that a retrospective opinion is necessary in order determine the degree of impairment of the left shoulder disability during the relevant period, such opinion should be obtained. Thereafter, readjudicate the issue of an earlier effective dates for any increased ratings for the Veteran's left shoulder. 3. Readjudicate the Veteran's original April 1, 1982 service connection claim for his psychiatric disability under 38 C.F.R. § 3.156(b) as it may relate to the ratings assigned with consideration of all relevant evidence in the claims file for the period on appeal. (Continued on next page.) 4. If the determinations remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.