Citation Nr: 0004724 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 97-22 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an effective date earlier than May 15, 1995, for the grant of a total disability evaluation for major depression. REPRESENTATION Appellant represented by: James A. Stanley, Jr., attorney WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from January 1975 to December 1976. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 1996 rating decision of the North Little Rock, Arkansas, Department of Veterans Affairs (VA) Regional Office (RO). In the rating decision on appeal, the RO granted a total disability evaluation for major depression with an effective date of May 15, 1995. In a July 1998 decision, the Board denied an effective date earlier than May 15, 1995, for a total disability evaluation for major depression. The appellant appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). The parties filed a joint motion for remand, which the Court granted on August 6, 1999. In the joint motion for remand, the parties determined that the Board had not discussed whether a February 1996 letter alone, or in consideration with previously submitted evidence, established that the appellant was totally disabled due to his depression within one year prior to the May 15, 1995, informal claim for increased compensation. FINDINGS OF FACT 1. The claim for a total disability evaluation for compensation purposes based on individual unemployability was received on October 26, 1995. 2. A total disability evaluation for compensation purposes based upon individual unemployability was not factually ascertainable prior to May 15, 1995. 3. There was no formal claim or written intent to file a claim for a total rating for compensation based on individual unemployability prior to May 1995. CONCLUSION OF LAW The legal criteria have not been met for an effective date earlier than May 15, 1995, for a total disability evaluation for major depression. 38 U.S.C.A. § 5110(b)(2) (West 1991); 38 C.F.R. § 3.400(o)(1)(2) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Decision On October 26, 1995, the appellant submitted a claim for increased compensation based upon individual unemployability. At the time, the appellant was service connected for major depression, with a 50 percent disability evaluation, and residuals, fracture, left mandible, with a 10 percent disability evaluation. In June 1996, the RO granted a total disability evaluation for major depression, effective May 15, 1995. Of record were VA records dated between April 1991 to December 1995, which included documents which had been submitted previously (the ones dated from 1991 to 1993). A VA hospitalization summary report revealed that the appellant had been admitted on May 15, 1995, because of suicidal ideation and alcohol and marijuana abuse. In the hospitalization summary report, the VA examiner stated that the appellant was competent, not psychotic, and employable. The appellant underwent a VA psychiatric evaluation in August 1995. The diagnoses were major depression, recurrent, moderate, and post-traumatic stress disorder, chronic. In a February 1996 letter, Dr. Douglas A. Stevens stated that the appellant was "totally vocationally disabled, not having had any successful work experience since 1978." Dr. Stevens submitted another letter in March 1996, reiterating what he stated in the February 1996 letter. The appellant had an RO hearing in March 1996. The appellant stated that he had been terminated from places of employment because of his poor work performance. He stated that he had been hospitalized for depression. The appellant noted that he had attempted to undergo vocational rehabilitation, which had failed. He stated that in 1987, the realized that he could no longer work, and he considered himself disabled as of 1988. He testified that he attempted to work following 1988, but that his attempts were unsuccessful. The appellant stated that he had no friends, he did not belong to any clubs or groups, and that he liked to be by himself. The appellant's wife stated that she noticed that the appellant started to go down hill in 1989. In the June 1996 rating decision on appeal, the RO granted a total rating for compensation based upon individual unemployability and assigned an effective date of May 15, 1995. Subsequently, the appellant filed a notice of disagreement stating that the effective date should be October 1987. The appellant had an RO hearing in December 1996. The appellant stated that he had been awarded Social Security Administration disability benefits in 1989, but that it was effective as of 1987. These records have been associated with the claims file. The appellant reiterated the difficulty he had with obtaining a job and with his depression. The appellant stated that he felt that the RO, when granting service connection for major depression, did not address the contention that he was totally disabled. He alleged that he called VA to ask them about unemployability. A taping of a conversation was played at the hearing, which revealed that the appellant had called to ask about the unemployability benefits. At the time, he had a combined evaluation of 40 percent (30 percent for major depression and 10 percent for residuals, fracture, left mandible). He was told that he would not be able to obtain such benefits without one disability being 60 percent or two disabilities having a combined evaluation of 70 percent. See 38 C.F.R. § 4.16(a) (1997). The earliest effective date for an increased evaluation is that which is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date is the date of receipt of claim. 38 U.S.C.A. § 5110(a) and (b)(2); 38 C.F.R. § 3.400(o)(1) and (2); see Harper v. Brown, 10 Vet. App. 125, 126 (1997). The Board has reviewed the evidence of record and finds that the appellant's claim for an effective date earlier than May 15, 1995, is legally impossible. The appellant submitted a claim for a total rating based upon individual unemployability on October 26, 1995. The RO construed the May 15, 1995, admittance to the hospital as an informal claim, which became a formal claim when the appellant filed his VA Form 21-8940, Veteran's Application for Increased Compensation Based Upon Individual Employability on October 26, 1995. Therefore, the RO considered the appellant's date of claim as May 15, 1995. See 38 C.F.R. § 3.155(a) (1999). In order to be granted an effective date earlier than May 15, 1995, which is the date of receipt of claim, it must be factually ascertainable that an increase in disability had occurred within one year from May 15, 1995 (thus, May 1994). Here, there was a VA hospitalization summary report, showing that the appellant had been admitted on May 15, 1995, for suicidal ideation. The VA records dated between May 1994 and May 15, 1995, did not show an increase in the appellant's service-connected major depression. Specifically, on March 17, 1995, the appellant was seen with complaints of pain in his left ankle. The diagnosis was gout. On May 11, 1995, the appellant complained that things were closing in on him. However, he elected to leave the VA facility prior to seeing a physician because he had to pick up one of his children at the babysitter's. Other than these documents, there are no objective medical records between May 1994 and May 15, 1995, which would establish a factual basis that the appellant's major depression had become totally disabling. It must be noted that in the May/June 1995 VA hospitalization summary report, the VA examiner made a finding that the appellant was employable. The Board finds that the RO was proper in determining that the appellant's 100 percent evaluation for major depression was as of May 15, 1995. The Board notes that in his February 1996 letter, Dr. Stevens stated that the appellant was "totally vocationally disabled," and that the appellant had not had any successful work experience since 1978. This letter, whether read alone or in consideration with previously submitted evidence, would not assist the appellant in obtaining an effective date prior to May 15, 1995, as the letter refers to a date that is more than one year prior to the receipt of the claim for such increase. See Harper, 10 Vet. App. at 126-127; see also 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)(2). Even if the letter was read in consideration with previously submitted evidence, there is no evidence of record, either medical or any other kind, dated between May 1994 and May 1995 with which the February 1996 letter could be read in consideration. This letter from Dr. Stevens was generated in 1996. It was not received within one year of the 1978 date or within the one year prior to May 15, 1995. A letter written in 1996 does not establish a factual ascertainable fact in 1978. The appellant and his representative have alleged that the appellant submitted prior claims for individual unemployability in 1988 and 1990. At the December 1996 RO hearing, the appellant's representative alleged that in a November 1990 VA Form 1-9, Appeal to the Board of Veterans' Appeals, the appellant raised the issue that he was totally disabled, which was never adjudicated. Such assertions are inaccurate. In the VA Form 1-9, the appellant stated that he had been "disabled by Social Security because of my depression since 1987." However, at the time the appellant submitted the VA Form 1-9, he was not service connected for major depression. Following the submission of the VA Form 1-9, and a January 1991 RO hearing, the RO, in a March 1991 rating decision, granted service connection for major depression and assigned a 30 percent disability evaluation with an effective date of September 10, 1990. In a May 1991 letter, the RO notified the appellant of the decision. In February 1992, the appellant filed a notice of disagreement only as to the effective date of September 10, 1990. At the time of the March 1991 rating decision, the RO reviewed the Diagnostic Codes for psychoneurotic disorders at that time and determined that the appellant's major depression was 30 percent disabling. The RO's determination of the appellant's level of disability included consideration of a 100 percent evaluation which contemplated that the appellant was demonstrably unable to obtain or retain employment. See 38 C.F.R. Part 4, Diagnostic Codes 9400-9411 (1990). In a June 1992 rating decision, the RO granted an earlier effective date of December 7, 1987, and continued the assignment of a 30 percent evaluation. The Diagnostic Codes for psychoneurotic disorders at that time (the criteria changed in February 1988) also included a consideration of a 100 percent evaluation which contemplated that the appellant was demonstrably unable to obtain or retain employment. See 38 C.F.R. Part 4, Diagnostic Codes 9400-9411 (1987). The appellant filed a notice of disagreement in July 1992, however, only as to the fact that he was paid as a single veteran with no dependents, as he was married and had children. He noted that he did not disagree with the combined evaluation of 40 percent for his service-connected disabilities (30 percent for major depression and 10 percent for residuals, fracture, left mandible). No notice of disagreement was filed within one year of the March 1991 and June 1992 rating decisions, which had determined that the appellant's major depression was 30 percent disabling under both the pre-February 1988 and post-February 1988 rating criteria for major depression. In fact, as noted above, following the June 1992 rating decision, the appellant stated that he did not disagree with the combined 40 percent evaluation for his disabilities. Further, at the time that the appellant's representative states that the appellant submitted claims for unemployability, the appellant did not meet the schedular criteria of a service-connected disability rated as 60 percent disabling or more or two or more service- connected disabilities rated as 40 percent disabling or more, with a combined evaluation of 70 percent. See 38 C.F.R. § 4.16(a). Regardless, the March 1991 and June 1992 rating decisions became final. The record reflects that since the June 1992 rating decision, the appellant did not file a claim, either formal or informal, to allege that he was unable to work because of his service-connected disabilities. The March 1991 and June 1992 decisions became final, and the appellant is collaterally estopped from relitigating the same issue based upon the same evidence. See Hazan v. Gober, 10 Vet. App. 511, 521 (1997). Therefore, as stated above, an effective date prior to May 15, 1995, is not legally possible. The United States Court of Appeals for Veterans Claims has held that in a case where the law, as opposed to the facts, is dispositive of the claim, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In regard to the May 1988 VA Form 21-4138, Statement in Support of Claim, the appellant referenced numerous conditions, not all of which were service connected. He did reference a psychiatric disorder and noted that he had been unable to obtain work for extended periods. The document does not establish a claim for a total rating for compensation based upon individual unemployability, an informal claim for a total rating for compensation based upon individual unemployability, or establish an intent to file a claim for a total rating for compensation based upon individual unemployability. The letter tends to establish difficulty maintaining employment rather than an inability to engage in substantially gainful employment. The document does not establish that the appellant was unemployable at that time. More importantly, the appellant was not service connected for a psychiatric disorder at the time the letter was written. The Board finds it impossible that there was intent to file a claim for a total rating for compensation based on referencing a non service-connected disability. In regard to the recorded telephone conversation wherein the appellant had inquired as to unemployability benefits, the tape does not constitute a claim, either formal or informal. The mere fact that the appellant sought information does not establish that he filed a claim. More importantly, the statutes clearly establish that an application must be filed. Wells v. Principi, 3 Vet. App. 307 (1992); Crawford v. Brown, 5 Vet. App. 33 (1993). A claim of entitlement may be either a formal or informal written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. Stewart v. Brown, 10 Vet. App. 15 (1997); see also 38 C.F.R. § 3.155(a). A tape recording is not "written." II. Joint motion for remand The Board notes that, as laid out above, there are two standards when considering an effective date for an increase in disability. One is date of receipt of claim, see 38 U.S.C.A. § 5110(a), and the other is the earliest effective date for an increased evaluation is that which is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date, see 38 U.S.C.A. § 5110(b)(2). The Board has reviewed the joint motion for remand filed by the parties and finds that it must address the parties' determination that the Board, in the July 1998 decision, failed to discuss whether the February 1996 letter from Dr. Stevens "alone or in consideration with previously submitted evidence established that the veteran was totally disabled due to his depression within the one[ ]year prior to the May 15, 1995, informal claim for increase." In asserting such, the parties cited to Swanson v. West, 12 Vet. App. 442 (1999) and Hazan v. Gober, 10 Vet. App. 511 (1997). The Board notes that the facts in the case at hand are distinguishable from both Swanson and Hazan. However, the Board must point out that the Swanson decision was withdrawn by the Court on December 2, 1999, and thus is no longer good law. Regardless, the case at hand is distinguishable from Swanson. In Hazan and Swanson, there was evidence that existed within one year of the date of claim that could be considered as an ascertainable fact to allow for an effective date earlier than the one assigned. See Hazan and Swanson, both supra. Here, there is no evidence that was in existence within the one-year period between May 1994 and May 1995 that could be considered to ascertain if an increase had occurred within that year. There is no provision for assigning an effective date prior to date of claim when there is no evidence that can support an ascertainable degree of impairment within one year prior to date of claim. Granting an automatic retroactive effective date would render the words of this statute meaningless. The statute is clear and unambiguous. If an increase in disability is shown within one year prior to date of claim, whether formal or informal, then the effective date can be earlier than the date of claim. See 38 U.S.C.A. § 5110(b)(2). However, if an increase in disability cannot be factually ascertainable within one year prior to date of claim, then the effective date is the date of claim. See 38 U.S.C.A. § 5110(a). If a claim is filed in a timely manner, the earliest possible effective date will be granted. However, if a claim is not timely filed within one year of when the disability increased occurred, the appellant is limited to the date of claim. See id. The Board notes that the parties in the joint motion for remand have not articulated a date that they consider as to when it was factually ascertainable that an increase in disability occurred which would establish that the appellant was unemployable due to service-connected disabilities prior to May 15, 1995. Even accepting all the statements in the record as true, there is no basis for granting an effective date earlier than May 15, 1995, for a total rating for compensation based upon individual unemployability. There is no evidence in the record between May 1994 and May 1995 which would establish that the appellant was unemployable due to service-connected disabilities at any time during that year. The Board is left with the impression that because the appellant has been disabled for a long time, the parties believe that he should be granted an effective date one year prior to date of his informal claim for an increased evaluation even though there is nothing in the record that was in existence at that time which would establish a factually ascertainable fact that the appellant was unable to work due to service-connected disabilities. The Board notes that it has reviewed the evidence of record in its entirety in making its determination as to an earlier effective date. See Hazan and Swanson, both supra. Without any evidence between 1994 and 1995, an effective date earlier than May 15, 1995, is not possible. Nowhere between 1993 and May 1995 did the appellant establish that his service- connected major depression had increased. He did not file a claim or an informal claim stating that his service-connected disability had worsened. He did not seek treatment at a VA facility during that time for his service-connected major depression. See 38 C.F.R. § 3.157(b) (1999). The appellant submitted his formal claim for a total rating for compensation based upon individual unemployability in October 1995. However, he filed a claim for paragraph 30 benefits in June 1995, see 38 C.F.R. § 4.30 (1999), stating that he had been hospitalized for his service-connected psychiatric disorder. The RO considered the May 15, 1995, the date he was admitted for treatment at a VA facility, as an informal claim for increased benefits. Because the appellant filed a formal claim within one year following his treatment, the RO determined that the date of claim was May 15, 1995. This is consistent with the regulation. 38 C.F.R. § 3.155(a) (1999). There was no evidence within one year prior to May 15, 1995, upon which the RO could base granting an effective date earlier than May 15, 1995. The Board agrees with the RO's determination. It finds no basis whatsoever to find that an increase in disability occurred at any time between May 1994 and May 1995. As there is no evidence for the Board to hang its hat on, and without such evidence, an effective date earlier than May 15, 1995, is not possible. If the appellant had wanted an effective date earlier than that, he should have filed a claim prior to that time. ORDER An effective date earlier than May 15, 1995, for the grant of total disability evaluation for compensation purposes based on individual unemployability is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals