BVA9505814 DOCKET NO. 93-00 149 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an effective date of February 19, 1980 for the assignment of an increased evaluation of 100 percent for anxiety neurosis with depressive features and secondary alcoholism, based on clear and unmistakable error in the rating decision of January 1981. 2. Entitlement to dependency and indemnity compensation under the provisions of 38 U.S.C.A. § 1318 (b)(1). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Greif, Associate Counsel INTRODUCTION The veteran had active military service from March 1952 to December 1953. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 1992 rating decision from the New York, New York, Regional Office of the Department of Veterans Affairs (VA). In that rating decision the RO denied an earlier effective date for a total evaluation for anxiety neurosis with depressive features and secondary alcoholism (psychiatric disorder) by finding that there was no clear and unmistakable error with respect to a previous decision dealing with the issue of increased rating for psychiatric disorder. CONTENTIONS OF APPELLANT ON APPEAL The appellant and her representative contend, in essence, that the RO committed error in not granting an earlier effective date for a total evaluation for the veteran veteran's psychiatric disorder. Specifically, she refers to VA outpatient reports which in her opinion reflects symptomatology that justifies a 100 percent total evaluation from an earlier date. She argues that the RO had committed clear and unmistakable error in not granting an earlier effective date in a January 1981 rating decision. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file(s). Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence supports the claim for an earlier effective date for a total evaluation for the service-connected psychiatric disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the RO. 2. The veteran's psychiatric disorder eventually resulted in totally incapacitating psychoneurotic symptoms. 3. The RO granted entitlement to an increased rating for psychiatric disorder by a rating action dated in January 1981 and assigned a 70 percent disability evaluation effective from February 19, 1980. The veteran did not initiate an appeal within one year of notification of that determination. In that same rating decision, the RO assigned a total evaluation for the veteran's psychiatric disorder effective from September 12, 1980. 4. The assignment of a 100 percent evaluation effective September 12, 1980 for the veteran's psychiatric disorder by the RO in January 1981 was not supported by the evidence then of record. 5. A total disability rating was in effect for a period of more than 10 consecutive years prior to the veteran's death. CONCLUSIONS OF LAW 1. The RO committed clear and unmistakable error in the January 1981 rating decision. An effective date of May 21, 1980 for the assignment of an increased evaluation of 100 percent for anxiety neurosis with depressive features and secondary alcoholism is warranted. 38 U.S.C.A. §§ 5107, 5110(b)(2), 7105 (West 1991); 38 C.F.R. §§ 3.105, 3.157 (1994). 2. The veteran's total disability rating was in effect for 10 years or more prior to his death, and the appellant is entitled to Dependency and Indemnity Compensation (DIC) benefits. 38 U.S.C.A. §§ 1318, 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, she has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The appellant contends that clear and unmistakable error was committed by the RO in the January 1981 rating decision which granted a total schedular disability rating for the veteran's psychiatric disorder, but made it effective from September 1980. Service connection was in effect for anxiety neurosis with depressive features and secondary alcoholism. The appellant argues that the effective date should have been in February 1980, which would have made the veteran at the time of his death continuously rated totally disabled for a period of 10 years. Entitlement to dependency and indemnity compensation may be paid when at the time of the veteran's death, he was in receipt of or entitled to receive compensation at the time of his death for service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding his death. 38 U.S.C.A. § 1318 (b)(1) (West 1991). The veteran's psychiatric disorder was rated totally disabling for a period of 9 years and 8 months immediately preceding his death. The veteran was admitted to a VA hospital in September 1980. The RO assigned a 100 percent rating for the veteran's psychiatric disorder effective from the date of admission to the hospital. The appellant contends that the RO should have made the effective date in February 1980 when the veteran was seeking treatment for his psychiatric disorder at the VA outpatient clinic. VA outpatient reports dated between February and September 1980 show that the veteran's psychiatric disorder was progressively getting more severe. On February 19, 1980 the veteran reported that he was not working, that he had financial worries, and that he had bad thoughts including suicide. The examiner resumed a prior prescription and referred the veteran to social services and the mental health clinic. Later that day the veteran complained of difficulty sleeping, financial troubles, and being tense. The examiner diagnosed clinical depression. Later in February 1980 the veteran complained of difficulty sleeping and worrying about finances. He also told the examiner that he had been drinking excessively. The examiner's assessment was depressive episode. On a March 25, 1980 report the examiner noted that the veteran's psychiatric disorder was in adequate remission and that he should continue his medication. On an April 23, 1980 report the examiner indicated that the veteran had no objective signs of depression, but that reality problems were having an effect on his nerves. On a May 21, 1980 report, the veteran complained of being very depressed that the VA had denied benefits on a different claim. He reported that he was unemployed and had been let go from his previous job once his employer found out about his psychiatric disorder. He complained of difficulty sleeping and not being able to hold a job. The examiner noted that the veteran's difficulties seemed environmental, and not likely to respond to chemotherapy. He increased the strength of the veteran's medication in hopes that his depressive disorder would not further deteriorate. On September 1980 reports the examiners noted that the veteran was distraught, agitated, tearful, and had been drinking excessively for a number of weeks. The examiners recommended that the veteran be admitted to the hospital. As noted on September 12, 1980 he was admitted to the hospital. The veteran submitted an October 1980 statement in which he reported that he couldn't find suitable employment because of his psychiatric disorder. On a similar statement dated in November 1980 the veteran noted that he had to quit a job because he became very frightened and choked up. During a November 1980 VA psychiatric examination the veteran complained of depression, anxiety, and irritability. The examiner reported that the veteran was depressed and somewhat apprehensive. The examiner noted that the veteran showed no evidence of a formal thought disorder, hallucination, or delusions. He reported that the veteran was oriented as to all three spheres and showed no significant memory defect. The examiner's diagnosis included depressive disorder, passive- dependent personality, and that frustrations in everyday life rapidly led to disorders of anxiety and depression. He noted that it was unlikely that the veteran could obtain and maintain productive employment. The veteran's claim for increased compensation for his psychiatric disorder was received on May 27, 1980. In the January 1981 rating decision the RO granted an increase from 50 percent to 70 percent effective February 19, 1980, the date of private medical treatment and a total schedular disability rating effective September 12, 1980, the date of admission to the VA hospital. The veteran was notified of the increased rating for the psychiatric disorder and its effective date in a letter dated February 9, 1981. A notice of disagreement for the effective date of the total evaluation for psychiatric disorder was never submitted. The January 1981 rating decision is final in the absence of clear and unmistakable error. The law grants a period of 1 year from the date of the notice of the result of initial determination for initiating an appeal by filing a notice of disagreement. If a notice of disagreement is not filed, then the determination becomes final and is not subject to revision on the same factual basis in the absence of clear and unmistakable error. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 3.105(a) (1993). In order for there to be a valid claim of clear and unmistakable error, the correct facts, as they were known at the time of the original decision, must have not been before the adjudicator, or the proper statutory or regulatory provisions were misapplied. The veteran must assert more than a disagreement as to how the facts were weighed or evaluated. Russell v. Principi, 3 Vet.App. 310, 313 (1992). In this case, the appellant asserts that the effective date of the veteran's 100 percent disability rating should have been February 19, 1980. In which case the appellant would qualify for dependency and indemnity compensation under 38 U.S.C.A. § 1318 (b)(1) (West 1991). As previously noted, the RO set the date of the VA hospital admission, September, 12, 1980, as the effective date for total evaluation of 100 percent. The date of a VA hospital admission will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(1) (1993). The date of receipt of a claim is generally the effective date for any award. 38 U.S.C.A. § 5110(a) (West 1991). However, the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within 1 year from such date. 38 U.S.C.A. § 5110(b)(2) (West 1991, Pub. L. 94-71 [1975]). Therefore, the Board, as the RO had, may look back at all the medical evidence in the year before the September 1980 hospital admission to see if it supports the assignment of a total evaluation at an earlier date. In so doing, the Board must determine if the facts known at the time were correctly stated and whether any relevant law was misapplied. Under 38 C.F.R. Part 4, § 4.132, Diagnostic Code 9400 (1993) a 100 percent evaluation requires virtual isolation in the community, with totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior. The veteran must also be demonstrably unable to obtain or retain employment. As noted VA outpatient treatment reports dated between February and September 1980 showed that symptomatology associated with the veteran's psychiatric disorder was progressively getting more severe. However, it was not until the May 21, 1980 report that the veteran revealed a psychiatric disorder which resulted in totally incapacitating psychoneurotic symptoms and an inability to obtain or retain employment. Specifically, the veteran reported that he could not hold a job, that he couldn't sleep at night and that "things were getting worse." Indicative of the severity of the veteran's symptoms, the examiner increased the strength of the veteran's medication in hopes that his depressive mood wouldn't deteriorate even further. The Board finds that the RO committed clear and unmistakable error in not considering the veteran as totally disabled from this date. It is not sufficient that the Board might disagree with the judgment of the RO and would have provided a higher rating. In its reasons to show lack of error in the January 1981 rating determination, the RO set forth three factual bases. The veteran could have been employed were it not for the alcoholism, the first indication that he was unemployable was during the September 1980 VA hospitalization, and the depression was due to situational problems. The RO was in error in that service connection had been established for alcoholism as secondary to the anxiety neurosis and the fact that the veteran was unemployed due to alcoholism had to be considered in determining the proper rating. The first indication the veteran was unemployed was not at the time of the September 1980 hospitalization but rather contained in the VA outpatient treatment records which showed treatment from February 1980. The actual hospital summary contains no new information about the veteran's employment status that was not already contained in the earlier records. Finally, regardless of the cause of the depression, depression as such was service-connected and its full level of severity must be measured. The fact there were situational factors increasing the level of depression is irrelevant. Having identified the errors in the 1981 adjudication the Board must know review the 1980 records for rating purposes in light of the corrected facts and factual assumptions. It is now appropriate to conclude that May 21, 1980 should be the effective date for the assignment of a total evaluation for psychiatric disorder. Although the appellant argued that the effective date should have been February 19, 1980, the date of the first VA outpatient report, the evidence does not show that the veteran was unable to obtain or retain employment at that time. In fact, on an April 1980 VA outpatient report the examiner noted that the veteran had stopped abusing alcohol and showed no objective signs of depression. It was not until the May 21, 1980 that the veteran's psychiatric disorder became so severe that the examiner prescribed stronger medication to control the symptoms. Moreover, it was at this time that the veteran's psychiatric disorder made him unable to obtain or retain employment. Considering all aspects of the veteran's depression including the effects of his environment and alcohol, there can be no other conclusion drawn than that the change in the psychiatric disorder which ultimately led to a total rating began not on September 12, 1980 but on May 21, 1980. According to the certificate of death the veteran died on May [redacted] 1990. Therefore, at the time of the veteran's death, he was in receipt of compensation for service-connected disability that was continuously rated totally disabling for a period of 10 or more years immediately preceding his death. Accordingly, the appellant has met the requirements of 38 U.S.C.A. § 1318 (b)(1) (West 1991) and is entitled to dependency and indemnity compensation. ORDER 1. Entitlement to an effective date of May 21, 1980 for the assignment of an increased evaluation of 100 percent for anxiety neurosis with depressive features and secondary alcoholism is granted. 2. Entitlement to dependency and indemnity compensation is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. JAN DONSBACH Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.